Judge Neil M. Gorsuch: His Jurisprudence and Potential Impact on the Supreme Court

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Judge Neil M. Gorsuch: His Jurisprudence

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R44778

Judge Neil M. Gorsuch: His Jurisprudence and Potential Impact on the Supreme Court

Summary

On January 31, 2017, President Donald J. Trump announced the nomination of Judge Neil M.

Gorsuch of the U.S. Court of Appeals for the Tenth Circuit (Tenth Circuit) to fill the vacancy on

the Supreme Court of the United States created by the death of Justice Antonin Scalia in 2016.

Judge Gorsuch was appointed to the Tenth Circuit by President George W. Bush in 2006. The

Tenth Circuit’s territorial jurisdiction covers Colorado, Kansas, New Mexico, Oklahoma, Utah,

Wyoming, and parts of Yellowstone National Park that extend into Idaho and Montana.

Immediately prior to his appointment to the bench, the nominee served as the Principal Deputy to

the Associate Attorney General, the third-ranking official at the U.S. Department of Justice,

assisting the Associate Attorney General with oversight of the Department’s various civil

litigation components. Before serving in the Justice Department, the nominee worked in private

practice as a civil litigator at the Washington, D.C. firm of Kellogg, Huber, Hansen, Todd, Evans

& Figel. Judge Gorsuch began his legal career clerking for federal judges. He first served as a law

clerk to Judge David B. Sentelle of the D.C. Circuit. Later, he served two Supreme Court Justices,

newly retired Justice Byron White and Justice Anthony Kennedy, during the October 1993 term.

This report provides an overview of Judge Gorsuch’s jurisprudence and discusses how the

Supreme Court might be affected if he were to succeed Justice Scalia. In particular, the report

focuses on those areas of law where Justice Scalia can be seen to have influenced the High

Court’s approach to particular issues or provided a fifth and deciding vote on the Court, with a

view toward how the nominee might approach those same issues. The report begins by discussing

the nominee’s views on two cross-cutting issues—the role of the judiciary and statutory

interpretation. It then addresses fourteen separate areas of law, arranged in alphabetical order,

from “administrative law” to “takings.” The report includes a table that notes the cases where the

Supreme Court has reviewed majority opinions written or joined by Judge Gorsuch. Another set

of tables in this report analyzes the nominee’s concurrences and dissents and those of his

colleagues on the Tenth Circuit.

A separate report, CRS Report R44772, Majority, Concurring, and Dissenting Opinions by Judge

Neil M. Gorsuch, coordinated by (name redacted)

, briefly summarizes all opinions authored

by Judge Gorsuch during his tenure on the federal bench. Other CRS products discuss various

issues related to the vacancy on the Court. For an overview of available products, see CRS Legal

Sidebar WSLG1526, Supreme Court Nomination: CRS Products, by (name redacted) and (name r

edacted)

Congressional Research Service

Judge Neil M. Gorsuch: His Jurisprudence and Potential Impact on the Supreme Court

Contents

Predicting Nominees’ Future Decisions on the Court ..................................................................... 2

Role of the Judiciary........................................................................................................................ 7

Statutory Interpretation .................................................................................................................. 22

Administrative Law ....................................................................................................................... 28

Capital Punishment........................................................................................................................ 36

Civil Liability ................................................................................................................................ 41

Civil Rights.................................................................................................................................... 47

Criminal Law and Procedure ......................................................................................................... 53

Environmental Law ....................................................................................................................... 62

Federalism ..................................................................................................................................... 67

Freedom of Religion ...................................................................................................................... 73

Freedom of Speech ........................................................................................................................ 80

International and Foreign Law ...................................................................................................... 84

Right to Bear Arms ........................................................................................................................ 85

Separation of Powers ..................................................................................................................... 88

Substantive Due Process................................................................................................................ 92

Takings .......................................................................................................................................... 99

Figures

Figure 1. Diagram from United States v. Rentz ............................................................................. 24

Tables

Table 1. Dissents and Concurrences from Majority Opinions on the Tenth Circuit ...................... 15

Table 2. Dissents and Concurrences Authored on the Tenth Circuit ............................................. 16

Table 3. Majority Opinions of the Supreme Court Reviewing Cases in Which Judge

Gorsuch Wrote or Joined an Opinion ......................................................................................... 21

Contacts

Author Contact Information ........................................................................................................ 100

Congressional Research Service

Judge Neil M. Gorsuch: His Jurisprudence and Potential Impact on the Supreme Court

n January 31, 2017, President Donald J. Trump announced the nomination of Judge Neil

M. Gorsuch of the U.S. Court of Appeals for the Tenth Circuit (Tenth Circuit)1 to fill the

vacancy on the Supreme Court of the United States created by the 2016 death of Justice

Antonin Scalia.2 Judge Gorsuch was appointed to the Tenth Circuit by President George W. Bush

in 2006.3 Immediately prior to his appointment to the bench, the nominee served as the Principal

Deputy to the Associate Attorney General, the third-ranking official at the U.S. Department of

Justice,4 assisting the Associate Attorney General with oversight of the Department’s various civil

litigation components.5 Before serving in the Justice Department, the nominee worked in private

practice as a civil litigator at the Washington, D.C. firm of Kellogg, Huber, Hansen, Todd, Evans

& Figel.6 Judge Gorsuch began his legal career clerking for federal judges. He first served as a

law clerk to Judge David B. Sentelle of the D.C. Circuit. Later, he served two Supreme Court

Justices, newly retired Justice Byron White and Justice Anthony Kennedy, during the October

1993 term.7

This report provides an overview of Judge Gorsuch’s jurisprudence and discusses how the

Supreme Court might be affected if he were to succeed Justice Scalia. However, in attempting to

ascertain how Judge Gorsuch could influence the High Court, it is important to note that, for

various reasons, it is difficult to predict accurately an individual’s likely contributions to the

Court based on their prior experience. A section of this report titled Predicting Nominees’ Future

Decisions on the Court provides a broad context and framework for evaluating how determinative

a judge’s prior record may be in predicting future votes on the Supreme Court.

Because Judge Gorsuch would succeed Justice Scalia on the High Court, this report focuses on

those areas of law where Justice Scalia can be seen to have influenced the Court’s approach to

particular issues or provided a fifth and deciding vote,8 with a view toward how the nominee

might approach those same issues. The report begins by discussing the nominee’s views on two

cross-cutting issues—the role of the judiciary and statutory interpretation. It then addresses

fourteen separate areas of law, arranged in alphabetical order, from “administrative law” to

“takings.” Within each section, the report reviews whether and how Judge Gorsuch has addressed

particular issues in opinions he authored or joined. In some instances, the report also identifies

other votes in which he participated (e.g., votes as to whether the Tenth Circuit should grant en

For purposes of brevity, references to a particular circuit in the body of this report (e.g., the Tenth Circuit) refer to the

U.S. Court of Appeals for that particular circuit.

See Press Release, The White House Office of the Press Secretary, President Donald J. Trump Nominates Judge Neil

Gorsuch to the United States Supreme Court (Jan. 31, 2017), https://www.whitehouse.gov/the-pressoffice/2017/01/31/president-donald-j-trump-nominates-judge-neil-gorsuch-united-states. See generally CRS Legal

Sidebar WSLG1728, Neil Gorsuch’s Nomination to the Supreme Court: Initial Observations, by (name redacted)

See Gorsuch, Neil M., BIOGRAPHICAL DIRECTORY OF FEDERAL JUDGES, FED. JUDICIAL CTR.,

http://www.fjc.gov/servlet/nGetInfo?jid=3125 (last visited Mar. 5, 2017) [hereinafter FJC, Gorsuch].

See U.S. DEP’T OF JUSTICE, ORGANIZATION, MISSION, & FUNCTIONS MANUAL (Sept. 9, 2014) available at

https://www.justice.gov/jmd/organization-mission-and-functions-manual-attorney-general.

See S. COMM. ON THE JUDICIARY, 115TH CONG., QUESTIONNAIRE FOR NOMINEE TO THE SUPREME COURT 43,

NOMINATION NO. PN55-115 (2017), available at

https://www.judiciary.senate.gov/imo/media/doc/Neil%20M.%20Gorsuch%20SJQ%20%28Public%29.pdf [hereinafter

Committee Questionnaire].

See id. at 42–43.

See FJC, Gorsuch, supra note 3. During the October 1993 term, Justice White sat by designation pursuant to 28

U.S.C. § 294(a) on nearly two dozen cases on the Tenth Circuit. See, e.g., Beard v. City of Northglenn, 24 F.3d 110

(10th Cir. 1994) (White, J.).

These areas are noted in CRS Report R44419, Justice Antonin Scalia: His Jurisprudence and His Impact on the

Court, coordinated by (name redacted), (name redacted), and (name redacted) [hereinafter CRS Scalia Report].

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Judge Neil M. Gorsuch: His Jurisprudence and Potential Impact on the Supreme Court

banc review of decisions of three-judge panels). The report analyzes majority, concurring, and

dissenting opinions, including decisions that Judge Gorsuch participated in while serving by

designation on another federal court of appeals.9 Where relevant, the report also notes Judge

Gorsuch’s nonjudicial writings,10 many of which address assisted suicide and euthanasia.11

While the report discusses numerous cases and votes involving Judge Gorsuch, it focuses

particularly on cases in which the sitting panel was divided, as these cases arguably best

showcase how he might approach a legal controversy whose resolution is a matter of dispute and

is not necessarily clearly addressed by prior case law.12 In addition, the report highlights areas

where Judge Gorsuch has expressed views on the law that may contrast with those of some of his

colleagues. To the extent that the nominee’s votes in particular cases arguably reflect broader

trends and tendencies in his decision making that he might bring to the High Court, the report

highlights such trends. Nonetheless, this report does not attempt to catalog every matter in which

Judge Gorsuch has participated during his decade of service on the Tenth Circuit. A separate

report, CRS Report R44772, Majority, Concurring, and Dissenting Opinions by Judge Neil M.

Gorsuch, coordinated by (name redacted)

, lists and briefly describes each opinion authored

by Judge Gorsuch during his tenure on the federal bench.

Other CRS products discuss various issues related to the vacancy on the Court. For an overview

of available products, see CRS Legal Sidebar WSLG1526, Supreme Court Nomination: CRS

Products, by (name redacted) and (name redacted).

Predicting Nominees’ Future Decisions on the Court

At least as a historical matter, attempting to predict how Supreme Court nominees may approach

their work on the High Court is a task fraught with uncertainty.13 For example, Justice Felix

See, e.g., Kastl v. Maricopa Cty. Cmty. Coll. Dist., 325 F. App’x 492 (9th Cir. 2009). For a complete list of the cases

in which Judge Gorsuch sat by designation on another court, see Committee Questionnaire, supra note 5, at 37–38.

While this report discusses many of Judge Gorsuch’s nonjudicial writings, it excludes two types of writings from its

discussion. First, the report does not discuss anything written by the nominee in a representative capacity for another

party, such as a brief submitted on behalf of a client to a court, as such materials may provide limited insights into the

advocate’s personal views on the law. See Confirmation Hearing on Federal Appointments: Hearing Before the S.

Comm. on the Judiciary Part 1, 108th Cong. 419 (2003) (statement of John G. Roberts, Jr.) (“I do not believe that it is

proper to infer a lawyer’s personal views from the positions that lawyer may advocate on behalf of a client.”); but see

William G. Ross, The Questioning of Lower Federal Court Nominees During the Senate Confirmation Process, 10

WM. & MARY BILL RTS. J. 119, 161 (2001) (suggesting that although “it is unlikely that judges would permit positions

that they advocated as attorneys to directly bias their judicial decisions” and “most lawyers advocate positions about

which they hold indifferent or conflicting opinions,” it “often may” be possible to “discern a nominee’s political

predilections from the types of clients and cases that a nominee has had as an attorney”). Second, the report does not

discuss any writings of the nominee that predate his graduation from law school, as such writings may be of limited

import to gauging his educated views on the law.

See, e.g., NEIL M. GORSUCH, THE FUTURE OF ASSISTED SUICIDE AND EUTHANASIA (2006) [hereinafter GORSUCH,

FUTURE]; Neil M. Gorsuch, The Legalization of Assisted Suicide and the Law of Unintended Consequences: A Review

of the Dutch and Oregon Experiments and Leading Utilitarian Arguments for Legal Change, 2004 WIS. L. REV. 1347

(2004) [hereinafter Gorsuch, Legalization]; Neil M. Gorsuch, The Right to Assisted Suicide and Euthanasia, 23 HARV.

J.L. & PUB. POL’Y 599 (2000) [hereinafter Gorsuch, Right]. The nominee studied this topic while obtaining a doctorate

in legal philosophy at the University of Oxford. See Committee Questionnaire, supra note 5, at 42.

See Jonathan H. Adler, What Happened When Merrick Garland Wrote for Himself, VOLOKH CONSPIRACY (Mar. 21,

2016), https://www.washingtonpost.com/news/volokh-conspiracy/wp/2016/03/21/what-happened-when-merrickgarland-wrote-for-himself/ (“The best way to get a handle on a circuit judge’s judicial philosophy is to look at the

judge’s concurrences and dissents.”).

Christine Kexel Chabot & Benjamin Remy Chabot, Mavericks, Moderates, or Drifters? Supreme Court Voting

Alignments, 1838–2009, 76 MO. L. REV. 999, 1040 (2011) (“[U]ncertainty is empirically well-founded. It is borne out

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Frankfurter, who had a reputation as a “progressive” legal scholar prior to his appointment to the

Court in 1939,14 disappointed15 some early supporters by subsequently becoming a voice for

judicial restraint and caution when the Court reviewed laws that restricted civil liberties during

World War II16 and the early Cold War era.17 Similarly, Justice Harry Blackmun, who had served

on the Eighth Circuit for a little over a decade prior to his appointment to the Court in 1970,18 was

originally considered by President Richard Nixon to be a “strict constructionist,” in the sense that

he viewed the judge’s role as interpreting the law, rather than making new law.19 In the years that

followed, however, Justice Blackmun authored the majority opinion in Roe v. Wade recognizing a

constitutional right to terminate a pregnancy.20 He was generally considered one of the more

liberal voices on the Court when he retired in 1994.21

The difficulty in attempting to predict how a nominee will approach the job of being a Justice

remains even when the nominee has had a lengthy federal judicial career prior to nomination.22

(...continued)

by Justices’ overall voting records since at least 1838. The president’s odds of appointing a Justice who sides with

appointees of his party have been no better than a coin flip.”); id. at 1021 (listing Justices Brennan, Clark, Frankfurter,

Holmes, McLean, McReynolds, Reed, Souter, Stevens, Warren, and Wayne as examples of jurists who “disappointed”

the expectations of the President who appointed them to the Court); see also The Judicial Nomination and

Confirmation Process: Hearings Before the Subcomm. on Admin. Oversight & the Courts, S. Comm. on the Judiciary,

107th Cong. 195 (2001) (statement of Douglas W. Kmiec, Dean & St. Thomas More Professor of Law, The Catholic

University of America) (similar).

See Joseph L. Rauh, Jr., An Unabashed Liberal Looks at a Half-Century of the Supreme Court, 69 N.C. L. REV. 213,

220 (1990) (“When Frankfurter took his seat on the Supreme Court in January 1939, almost everyone assumed that he

would become the dominant spirit and intellectual leader of the new liberal Court. After all, he had been, in the words

of Brandeis, ‘the most useful lawyer in the United States’: defender of Tom Mooney, the alien victims of the Palmer

Red Raids, the striking miners of Bisbee, Arizona, Sacco and Vanzetti, and too many others to mention.”); JAMES F.

SIMON, THE ANTAGONISTS: HUGO BLACK, FELIX FRANKFURTER AND CIVIL LIBERTIES IN MODERN AMERICA 13–16, 46–

47 (1989) (noting fears in some political circles that Frankfurter was a Communist or Communist sympathizer,

“inspir[ing] American conservatives to label Frankfurter a dangerous radical”); see generally NOAH FELDMAN,

SCORPIONS: THE BATTLES AND TRIUMPHS OF FDR’S GREAT SUPREME COURT JUSTICES 14, 21–27 (2010).

See, e.g., Rauh, supra note 14, at 220 (“But . . . a deep belief in judicial restraint in all matters overtook even [Justice

Frankfurter’s] lifelong dedication to civil liberties.”).

See, e.g., Korematsu v. United States, 323 U.S. 214, 225 (1944) (Frankfurter, J., concurring) (contending that the

propriety of the Japanese-American civilian exclusion order was the “business” of Congress and the Executive, not the

Court); W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 646 (1943) (Frankfurter, J., dissenting) (arguing for the

constitutionality of a World War II-era law requiring students to salute the flag).

See, e.g., Dennis v. United States, 341 U.S. 494, 556 (1951) (Frankfurter, J., concurring) (upholding the conviction of

three defendants under the Smith Act for conspiracy to organize the Communist Party as a group advocating the

overthrow of the U.S. government by force).

See Blackmun, Harry Andrew, BIOGRAPHICAL DIRECTORY OF FEDERAL JUDGES, FED. JUDICIAL CTR.,

http://www.fjc.gov/servlet/nGetInfo?jid=187&cid=0&ctype=sc&instate=na (last visited Mar. 5, 2017).

See BOB WOODWARD & SCOTT ARMSTRONG, THE BRETHREN: INSIDE THE SUPREME COURT 97 (1979) (“Nixon found

Blackmun’s moderate conservatism perfect. . . . [Blackmun] had a . . . predictable, solid body of opinions that

demonstrated a levelheaded, strict-constructionist philosophy. . . . Blackmun was a decent man, consistent, wedded to

routine, unlikely to venture far.”).

410 U.S. 113 (1973) (Blackmun, J.).

See LINDA GREENHOUSE, BECOMING JUSTICE BLACKMUN 235 (2005) (noting that, by 1994, “Harry Blackmun was, by

wide consensus, the most liberal member of the Supreme Court”).

Judge Gorsuch has served for a little more than a decade on the Tenth Circuit. See FJC, Gorsuch, supra note 3. By

comparison, of the current members of the Supreme Court, Justice Alito served the longest on the federal court of

appeals—sixteen years—prior to being elevated to the High Court. See Alito, Samuel A., Jr., BIOGRAPHICAL DIRECTORY

OF FEDERAL JUDGES, FED. JUDICIAL CTR., http://www.fjc.gov/servlet/nGetInfo?jid=26 (last visited Mar. 5, 2017).

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Judge Neil M. Gorsuch: His Jurisprudence and Potential Impact on the Supreme Court

Federal appellate judges are bound by Supreme Court and circuit precedent23 and, therefore, are

not normally in a position to espouse freely their views on particular legal issues in the context of

their judicial opinions.24 Moreover, unlike the Supreme Court, which enjoys “almost complete

discretion” in selecting its cases, the federal courts of appeals are required to hear many cases as a

matter of law.25 As a result, the appellate courts consider “many routine cases in which the legal

rules are uncontroverted.”26 Perhaps indicative of the nature of federal appellate work, the vast

majority of cases decided by three-judge panels of federal courts of appeals are decided without

dissent.27 The Tenth Circuit, where Judge Gorsuch serves, is no exception to this general trend,

with the overwhelming majority of opinions issued by that court being unanimous. 28 Accordingly,

while Judge Gorsuch’s work on the Tenth Circuit may provide some insight into his general

approach to particular legal issues,29 the bulk of the opinions that Judge Gorsuch has authored or

joined may not be particularly insightful with regard to his views on specific areas of law, or how

he would approach these issues if he were a Supreme Court Justice.

Even in closely contested cases where concurring or dissenting opinions are filed,30 it still may be

difficult to determine the preferences of the nominated judge if the nominee did not actually write

See In re Smith, 10 F.3d 723, 724 (10th Cir. 1993) (“We are bound by the precedent of prior panels absent en banc

reconsideration or a superseding contrary decision by the Supreme Court.”); see generally Tuan Samahon, The Judicial

Vesting Option: Opting Out of Nomination and Advice and Consent, 67 OHIO ST. L.J. 783, 816 n.160 (2006) (“Vertical

stare decisis binds hierarchically inferior federal appellate judges to follow the Supreme Court’s on-point precedent.

The relationship is vertical, or between inferior and superior.”).

See RICHARD A. POSNER, THE FEDERAL COURTS: CHALLENGE AND REFORM 367 (2009) (“Supreme Court decisions

bind the courts of appeals in a way in which they do not bind the Court itself, and therefore narrow considerably the

scope for those courts to exercise choice.”); see also DAVID ALISTAIR YALOF, PURSUIT OF JUSTICES: PRESIDENTIAL

POLITICS AND THE SELECTION OF SUPREME COURT NOMINEES 171 (1999) (claiming that the nature of a judge’s work on

a federal appellate court allows “most circuit judges [to] chart a course of moderation” and “more often than not, a

circuit judge’s opinions tend to betray outsiders’ perceptions of that judge as a sharp ideological extremist”).

Judges may believe that they have more freedom to state their views on how the law should properly be interpreted in

concurring or dissenting opinions where they are not speaking for the court. Indeed, Judge Gorsuch in some cases

wrote separately to express disagreement with existing precedent that controlled the outcome of a case. A notable

example, discussed in more detail below, was the concurrence authored by Judge Gorsuch in Gutierrez-Brizuela v.

Lynch, 834 F.3d 1142 (10th Cir. 2016). See also discussion infra in Administrative Law.

Louis J. Sirico, Jr. & Beth A. Drew, The Citing of Law Reviews by the United States Courts of Appeals: An

Empirical Analysis, 45 U. MIAMI L. REV. 1051, 1052 n.8 (1991); see generally POSNER, supra note 24, at 367

(observing that “more of the work of [the federal appellate] courts really is technical. . . . Most of the appeals they get

can be decided uncontroversially by the application of settled principles.”).

See Sirico & Drew, supra note 25, at 1052 n.8.

See FRANK B. CROSS, DECISION MAKING IN THE U.S. COURTS OF APPEALS 160 (2007) (noting the “relative paucity of

circuit court panel dissents”).

See Christopher A. Cotropia, Determining Uniformity Within the Federal Circuit by Measuring Dissent and En Banc

Review, 43 LOY. L.A. L. REV. 801, 815 (2010) (noting that from 1998 to 2009, 2.54% of the opinions issued by the

Tenth Circuit included a dissent); see generally Michael W. McConnell, The Second Conversation with Justice Samuel

A. Alito, Jr.: Lawyering and the Craft of Judicial Opinion Writing, 37 PEPP. L. REV. 33, 37 (2009) (suggesting that the

Tenth Circuit “is more collegial” than other appellate courts); Neil M. Gorsuch, Law’s Irony, 37 HARV. J.L. & PUB.

POL’Y 743, 753 (2014) [hereinafter Gorsuch, Law’s Irony] (“Over ninety percent of the decisions issued by my court

are unanimous; that’s pretty typical of the federal appellate courts.”).

See YALOF, supra note 24, at 170 (“Although hardly dispositive, federal appellate opinions offer perhaps the best

gauge available for predicting an individual’s future voting behavior on the Supreme Court.”); see also David B.

Rivkin, Jr. & Andrew M. Grossman, What Kind of Judge is Neil Gorsuch?, WALL ST. J. (Jan. 31, 2017), available at

https://www.wsj.com/articles/what-kind-of-a-judge-is-neil-gorsuch-1485912681 (“The way to take a judge’s measure

is to read his opinions . . . .”).

See Bert I. Huang & Tejas N. Narechania, Judicial Priorities, 163 U. PA. L. REV. 1719, 1754–55 (2015) (suggesting

that the “presence of a concurrence or dissent serves as a signal” that the case before the court is a “hard case”); see

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an opinion in the case. The act of joining an opinion authored by another judge does not

necessarily reflect full agreement with the underlying opinion.31 For example, in an effort to

promote consensus on a court, some judges will decline to dissent unless the underlying issue is

particularly contentious.32 As one commentator notes, “[T]he fact that a judge joins in a majority

opinion may not be taken as indicating complete agreement. Rather, silent acquiescence may be

understood to mean something more like ‘I accept the outcome in this case, and I accept that the

reasoning in the majority opinion reflects what a majority of my colleagues has agreed on.’”33

Using caution when interpreting a judge’s vote isolated from a written opinion may be

particularly important with votes on procedural matters. For example, a judge’s vote to grant an

extension of time for a party to submit a filing generally does not signal agreement with the

substantive legal position proffered by that party.34 And while some observers have highlighted

votes by Judge Gorsuch in favor of having certain three-judge panel decisions reconsidered by the

en banc Tenth Circuit,35 these votes should be viewed with a degree of caution. A vote to rehear a

case en banc could signal disagreement with the legal reasoning of the panel decision, and may

suggest that a judge wants the entire court to have an opportunity to correct a perceived error by

(...continued)

generally Patricia M. Wald, The Rhetoric of Results and the Results of Rhetoric: Judicial Writings, 62 U. CHI. L. REV.

1371, 1412–15 (1995) (noting the motivations that prompt judges to write concurring or dissenting opinions); Diane P.

Wood, When to Hold, When to Fold, When to Reshuffle: The Art of Decisionmaking on a Multi-Member Court, 100

CAL. L. REV. 1445, 1451–57 (2012) (describing the considerations that prompt judges to publish separate opinions).

See Irin Carmon, Opinion, Justice Ginsburg’s Cautious Radicalism, N.Y. TIMES (Oct. 24, 2015),

http://www.nytimes.com/2015/10/25/opinion/sunday/justice-ginsburgs-cautious-radicalism.html (statement of Ruth

Bader Ginsburg) (noting that “an opinion of the court very often reflects views that are not 100 percent what the

opinion author would do, were she writing for herself”).

See Sanford Levinson, Trash Talk at the Supreme Court: Reflections on David Pozen’s Constitutional Good Faith,

129 HARV. L. REV. F. 166, 174 (2016) (declaring the assumption that “all adjudicators are splendidly isolated” to be

“foolish,” and arguing that it may be “incumbent” upon judges to engage in “intellectual compromise[s]” “to serve the

public weal”). There is an academic debate over whether the decision to join a concurrence or dissent signals complete

agreement with that opinion. Compare Robert H. Smith, Uncoupling the “Centrist Bloc”—An Empirical Analysis of

the Thesis of A Dominant, Moderate Bloc on the United States Supreme Court, 62 TENN. L. REV. 1, 10 n.36 (1994)

(arguing that “decisions to join or not join others’ opinions may in fact be influenced by a number of factors” outside of

a judge’s agreement with that decision), with Jason J. Czarnezki et al., An Empirical Analysis of the Confirmation

Hearings of the Justices of the Rehnquist Natural Court, 24 CONST. COMMENT. 127, 143 (2007) (“[A] decision to join a

special opinion is a more finely tuned tool, one that almost certainly indicates agreement not just with the outcome but

also with the reasoning.”).

See Steven D. Smith, Lessons from Lincoln: A Comment on Levinson, 38 PEPP. L. REV. 915, 924 (2011).

Cf. Summers v. Utah, 927 F.2d 1165, 1167 (10th Cir. 1991) (noting that a case may raise “procedural point[s] that

should be addressed” separately from the “substantive merits of the case.”).

See, e.g., Little Sisters of the Poor Home for the Aged, Denver, Colo. v. Burwell, 799 F.3d 1315, 1316 (10th Cir.

2015) (Gorsuch, J., joining an opinion arguing for granting a petition for rehearing en banc in a matter arising under the

Religious Freedom Restoration Act); United States v. Benally, 560 F.3d 1151 (10th Cir. 2009) (Gorsuch, J., declining

to join an opinion seeking to rehear a case respecting racial biases in a jury’s proceedings). Relative to its sister circuits,

the Tenth Circuit grants en banc rehearings infrequently. In a one-year period between September 30, 2014, and

September 30, 2015, for example, 1 of the 1,301 cases that the Tenth Circuit resolved on the merits was reheard en

banc. See U.S. COURTS, Judicial Facts and Figures, Table B-10, U.S. Courts of Appeals—Cases Terminated on the

Merits After Oral Arguments or Submission on Briefs, by Circuit, During the 12-Month Period Ending September 30,

2015, available at http://www.uscourts.gov/sites/default/files/data_tables/B10Sep15.pdf (last visited Mar. 5, 2017).

One other court of appeals—the Second Circuit—had fewer en banc hearings during the same time period. Id. Even the

decision not to take a case en banc seemingly garners little debate in the Tenth Circuit. See Jeremy D. Horowitz, Not

Taking “No” for an Answer: An Empirical Assessment of Dissents from Denial of Rehearing En Banc, 102 GEO. L.J.

59, 76 (2013) (noting that, relative to the Ninth and D.C. Circuits, dissents from denials of rehearings en banc are

“particularly infrequent[]” in the Tenth Circuit).

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Judge Neil M. Gorsuch: His Jurisprudence and Potential Impact on the Supreme Court

the panel.36 On the other hand, as one federal appellate judge noted in a dissent from a decision

denying a petition for a rehearing en banc:

Most of us vote against most such petitions and suggestions even when we think the

panel decision is mistaken. We do so because federal courts of appeals decide cases in

three judge panels. En banc review is extraordinary, and is generally reserved for

conflicting precedent within the circuit which makes application of the law by district

courts unduly difficult, and egregious errors in important cases.37

Consequently, a vote for or against rehearing a case en banc or on other procedural matters does

not necessarily equate to an endorsement or repudiation of a particular legal position.38

Finally, it should be noted that, despite having served on the federal appellate bench for a decade,

Judge Gorsuch has said little about some areas of law because of the nature of the Tenth Circuit’s

docket. Accordingly, it may be difficult to predict how he might rule on certain issues if he were

elevated to the Supreme Court. Spanning six western states—Colorado, Kansas, New Mexico,

Oklahoma, Utah, and Wyoming (along with those segments of Yellowstone National Park

extending into Idaho and Montana),39 the Tenth Circuit has a relatively routine caseload when

compared to some of its sister circuits. More than forty percent of the cases that the Tenth Circuit

hears are criminal law matters or petitions from federal or state prisoners,40 a number in line with

the national average for the regional federal courts of appeals.41 The Tenth Circuit also hears a

number of private civil litigation disputes, such as cases on labor, insurance, contract, and tort

law.42 On the other hand, some seven percent of the Tenth Circuit’s docket is devoted to

administrative agency appeals,43 a percentage far below that of the D.C. Circuit, where over half

See Patricia M. Wald, The Problem with the Courts: Black-Robed Bureaucracy, or Collegiality Under Challenge?,

42 MD. L. REV. 766, 784 (1983) (noting that “[s]ome judges vote routinely for rehearings en banc on all cases with

which they disagree”).

See United States v. Weitzenhoff, 35 F.3d 1275, 1293 (9th Cir. 1993) (Kleinfeld, J., dissenting from denial of

rehearing en banc); see also Bartlett v. Bowen, 824 F.2d 1240, 1244 (D.C. Cir. 1987) (Edwards, J., concurring in denial

of rehearing en banc) (“By declining to rehear a case, ‘we do not sit in judgment on the panel; we do not sanction the

result it reached’. . . . We decide merely that . . . review by the full court is not justified.”).

See Mitts v. Bagley, 626 F.3d 366, 370 (6th Cir. 2010) (Sutton, J., concurring in rehearing en banc) (“No one thinks a

vote against rehearing en banc is an endorsement of a panel decision . . . .”).

See General Information, U.S. TENTH CIR. COURT OF APPEALS, https://www.ca10.uscourts.gov/clerk (last visited

Mar. 5, 2017).

U.S. COURTS, FEDERAL COURT MANAGEMENT STATISTICS, U.S. COURT OF APPEALS—JUDICIAL CASELOAD PROFILED

23 (Sept. 2016), http://www.uscourts.gov/sites/default/files/data_tables/fcms_na_appprofile0930.2016_2.pdf

(categorizing appeals filed with and terminated by the Tenth Circuit between September 2010 and September 2016, and

showing that over forty percent, and in some years more than half, of the appellate docket consisted of criminal cases or

claims brought by prisoners); U.S. Courts, Judicial Facts and Figures, Table B-6, U.S. Courts of Appeals—Cases

Commenced, Terminated, and Pending, by Circuit and Nature of Proceeding, During the 12-Month Period Ending

September 30, 2015, at 4, available at http://www.uscourts.gov/sites/default/files/data_tables/B06Sep15.pdf (last

visited Mar. 5, 2017) [hereinafter U.S. Courts, Table B-6] (noting that 25.1% of the Tenth Circuit’s docket for a 12month period ending on September 30, 2015, was devoted to criminal cases; 5.4% to petitions from federal prisoners

and 10.2% to petitions from other prisoners).

U.S. Courts, Table B-6, supra note 40, at 1 (noting that 23.8% of the entire federal appellate docket (excluding the

Federal Circuit) for a 12-month period ending on September 30, 2015, was devoted to criminal cases; 5.4% to petitions

from federal prisoners and 13.7% to petitions from other prisoners).

These private civil matters made up 39.7% of the Tenth Circuit’s docket for the 12-month period ending on

September 30, 2015. Id. at 4. For a breakdown of the various civil matters heard by the Tenth Circuit during this period,

see U.S. Courts, Judicial Facts and Figures, Table B-7, U.S. Courts of Appeals—Civil and Criminal Cases

Commenced, by Circuit and Nature of Suit or Offense, During the 12-Month Period Ending September 30, 2015, at 2–

3, available at http://www.uscourts.gov/sites/default/files/data_tables/B07Sep15.pdf (last visited Mar. 5, 2017).

U.S. Courts, Table B-6, supra note 40, at 4 (noting that 6.8% of the Tenth Circuit’s docket for a 12-month period

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the docket consists of administrative matters44 as a result of various jurisdictional statutes and the

court’s location in the nation’s capital.45 Similarly, the Tenth Circuit rarely has the opportunity to

address certain topics, such as international law and foreign affairs, terrorism and national

security, and major agency actions in the field of environmental law.46

Role of the Judiciary

In assessing how Judge Gorsuch views the role of the judiciary, many commentators have likened

the nominee to Justice Scalia.47 During the nearly thirty years that Justice Scalia served on the

Supreme Court, the late Justice was a well-known proponent of originalism, textualism, and the

view that clear rules should guide the work of the lower courts.48 Accordingly, Justice Scalia

vigorously dissented from opinions that, in his view, failed to construe legal texts in accordance

with their ordinary meaning at the time of drafting,49 or resulted in too much ambiguity in the

meaning of the law.50 Following the nomination of Judge Gorsuch, many commentators opined

that he would, if confirmed, follow in Justice Scalia’s footsteps as an originalist,51 and largely

“preserve the ideological balance that existed on the court when [Justice] Scalia died.”52 These

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ending on September 30, 2015, consisted of administrative agency appeals). Many of these appeals involve the

“management of the Nation’s many public lands that lie within [the Tenth Circuit’s] jurisdiction, including national

parks, national wildlife refuges, and wilderness areas.” See, e.g., Confirmation Hearings on Federal Appointments:

Hearing before the S. Comm. on the Judiciary, Part 5, 109th Congress 41 (2006) [hereinafter Gorsuch Confirmation

Hearing] (question from Senator Patrick Leahy).

See U.S. Courts, Table B-6, supra note 40, at 1 (noting that 54.5% of the D.C. Circuit’s docket for a 12-month period

ending on September 30, 2015, consisted of administrative agency appeals).

See CRS Legal Sidebar WSLG533, Why is the D.C. Circuit “So” Important?, by (name redacted)

See generally CRS Report R44772, Majority, Concurring, and Dissenting Opinions by Judge Neil M. Gorsuch,

coordinated by (name redacted)

[hereinafter CRS Gorsuch Opinions Report] (collecting opinions by Judge

Gorsuch and identifying their legal topics); see, e.g., Helen Klein Murillo, Yishai Schwartz, & Clara Spera, Neil

Gorsuch on National Security Law, LAWFARE (Feb. 1, 2017) (“Perhaps unsurprisingly in the Tenth Circuit, Judge

Gorsuch has written almost nothing in the areas of international law or foreign affairs.”); Ann Carlson, Predicting How

Neil Gorsuch Would Rule on Environmental Issues, LEGALPLANET (Jan. 31, 2017), http://legalplanet.org/2017/01/31/predicting-how-neil-gorsuch-would-rule-on-environmental-issues/ (noting that Judge Gorsuch

“does not have a huge environmental record”).

See, e.g., Adam Liptak, In Judge Neil Gorsuch, an Echo of Scalia in Philosophy and Style, N.Y. TIMES (Jan. 31,

2017), https://www.nytimes.com/2017/01/31/us/politics/neil-gorsuch-supreme-court-nominee.html?_r=0 (“President

Trump, in nominating Judge Gorsuch to the Supreme Court, has chosen a judge who not only admires the justice he

would replace but also in many ways resembles him.”); Richard Primus, Trump Picks Scalia 2.0, POLITICO (Jan. 31,

2017), http://www.politico.com/magazine/story/2017/01/trump-gorsuch-supreme-court-scalia-20-214718 (“Of all the

candidates Trump shortlisted for the Supreme Court, Gorsuch is the closest thing to the man whose death left the

vacancy.”).

See CRS Scalia Report, supra note 8, at 2–4.

See, e.g., Obergefell v. Hodges, --- U.S. ---, 135 S. Ct. 2584, 2629 (2015) (Scalia, J., dissenting); King v. Burwell, --U.S. ---, 135 S. Ct. 2480, 2496 (2015) (Scalia, J., dissenting).

See, e.g., Mistretta v. United States, 488 U.S. 361, 426–27 (1989) (Scalia, J., dissenting); Morrison v. Olson, 487

U.S. 654, 708–12 (1988) (Scalia, J., dissenting).

See, e.g., Liptak, supra note 47 (“Judge Gorsuch, 49—who was appointed to the United States Court of Appeals for

the 10th Circuit, in Denver, by President George W. Bush—is an originalist, meaning he tries to interpret the

Constitution consistently with the understanding of those who drafted and adopted it.”); Robert Barnes, Neil Gorsuch

Naturally Equipped for His Spot on Trump’s Supreme Court Shortlist, WASH. POST (Jan. 28, 2017),

https://www.washingtonpost.com/politics/courts_law/neil-gorsuch-naturally-equipped-for-his-spot-on-trumps-supremecourt-shortlist/2017/01/28/91b00a46-e49b-11e6-a453-19ec4b3d09ba_story.html (similar).

See Amy Howe, Trump Nominates Gorsuch to Fill Scalia Vacancy, SCOTUSBLOG (Jan. 31, 2017),

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Judge Neil M. Gorsuch: His Jurisprudence and Potential Impact on the Supreme Court

conclusions were echoed by academic studies. For example, following President Trump’s

election, several studies by political scientists suggested that Judge Gorsuch would replicate

Justice Scalia’s judging style if he were to be elevated to the Supreme Court.53 Such an outcome

would be in keeping with the reported intentions of President Trump, who repeatedly noted

during the 2016 presidential campaign his desire to nominate judges to the Court who are “very

much in the mold of Justice Scalia.”54

On the other hand,55 during Judge Gorsuch’s confirmation hearings for his seat on the Tenth

Circuit in 2006, the nominee explicitly rejected the view that he had any particular “philosophy”

toward judging. He noted that he “resist[ed]” being “pigeon-hole[d]” because “people do

unexpected things and pigeon holes ignore gray areas in the law, of which there are many.”56

When Judge Gorsuch has commented on which judges have most influenced his approach to

judging, he has noted a wide range of jurists with varying judicial philosophies. For example,

during the remarks following his nomination to the Supreme Court, Judge Gorsuch openly

praised Justice Scalia’s general influence, calling the late Justice a “lion of the law.”57 However,

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http://www.scotusblog.com/2017/01/trump-nominates-gorsuch-fill-scalia-vacancy/; see also Todd Ruger, Neil Gorsuch

Nominated by Trump for U.S. Supreme Court, ROLL CALL (Jan. 31, 2017), http://www.rollcall.com/news/politics/neilgorsuch-nominated-trump-u-s-supreme-court (“If confirmed, Gorsuch would retain the ideological balance on the court

that was present before Scalia’s death—a 5-4 advantage for the conservative wing.”); Greg Stohr & Jennifer Jacobs,

Trump’s Two Supreme Court Finalists Are Summoned for Announcement, BLOOMBERG (Jan. 31, 2017),

https://www.bloomberg.com/politics/articles/2017-01-31/trump-expected-to-make-supreme-court-pick-from-twofinalists (“Gorsuch . . . would in all likelihood restore the ideological balance that existed before Justice Antonin

Scalia’s death on Feb. 13, 2016, left a vacancy that has yet to be filled.”); Michael A. Memoli, Trump Chooses Neil

Gorsuch, a Conservative Seen as Likely to be Confirmed, for Supreme Court, L.A. TIMES (Jan. 31, 2016),

http://www.latimes.com/politics/washington/la-na-trailguide-updates-hold-president-trump-scotus-pick-1485903484htmlstory.html (similar).

See, e.g., Jeremy Kidd, et al., Searching for Justice Scalia: Measuring the ‘Scalia-ness’ of the Next Potential

Member of the U.S. Supreme Court, at 11 (Jan. 27, 2017), https://ssrn.com/abstract=2874794 (using a “Scalia Index

Score”— based on how often a judge (1) promotes or practices originalism, (2) cites to Justice Scalia’s nonjudicial

writings, and (3) writes separately—to determine that Judge Gorsuch is more likely than other rumored nominees to be

“Scalia-like”); Lee Epstein, Andrew D. Martin & Kevin Quinn, President-Elect Trump and His Possible Justices, at 13

(Dec. 15, 2016), http://pdfserver.amlaw.com/nlj/PresNominees2.pdf (using a score based on the ideology of the

Republican senator from Colorado at the time of Judge Gorsuch’s nomination to the Tenth Circuit to suggest that Judge

Gorsuch “fall[s] within . . . an ideological range” between Justices Scalia and Alito on the Supreme Court); What Data

Science Can Tell Us about Neil Gorsuch, RAVEL LAW (Feb. 1, 2017), http://ravellaw.com/what-data-science-can-tellus-about-neil-gorsuch/ (using a “Scalia Score” based on the number of times a potential nominee cited to an opinion by

Justice Scalia to conclude that Judge Gorsuch had the highest “Scalia Score” of any other rumored nominee).

See Former Secretary of State Hillary Rodham Clinton, Democratic Presidential Candidate, and Donald Trump,

Republican Presidential Candidate, Participate in a Debate, CQ TRANSCRIPTIONS, Oct. 9, 2016 (statement of Donald J.

Trump) (“I am looking to appoint judges very much in the mold of Justice Scalia.”). This sentiment was echoed by the

President during his announcement of the nomination of Judge Gorsuch to the Supreme Court. See Judge Neil Gorsuch,

Nominated to the Supreme Court, CQ TRANSCRIPTIONS, Jan. 31, 2016 [hereinafter Gorsuch Nomination] (statement of

Donald J. Trump) (stating that the “image and genius” of the “late, great Justice Antonin Scalia . . . was in my mind

throughout the decision-making process”).

Some commentators have questioned the value of data studies that attempt to predict the future behavior of judicial

nominees. See, e.g., Zoë Robinson, Comparative Judicial Attitudinalism: A Preliminary Study of Judicial Choices in

Westminster Legal Systems, 2011 U. CHI. LEGAL F. 209, 215 (2011); Ward Farnsworth, The Use and Limits of MartinQuinn Scores to Assess Supreme Court Justices, With Special Attention to the Problem of Ideological Drift, 101 NW. U.

L. REV. 1891, 1902 (2007).

See Gorsuch Confirmation Hearing, supra note 43, at 36. Similarly, in a questionnaire that he answered during his

nomination to the Tenth Circuit, Judge Gorsuch resisted the idea that there was any “firmly fixed formula” with respect

to interpreting the Constitution. Id. at 34.

See Gorsuch Nomination, supra note 54 (statement of Judge Neil Gorsuch) (“Justice Scalia was a lion of the law.

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Judge Neil M. Gorsuch: His Jurisprudence and Potential Impact on the Supreme Court

the nominee also noted the influence of “three significant but quite different judges”58 who

“brought him up in the law,” Judge David Sentelle and Justices Byron White and Anthony

Kennedy.59 This statement has prompted some commentators to compare the nominee to those

jurists, as well.60

The judicial and nonjudicial writings of Judge Gorsuch may provide another—perhaps richer and

more nuanced—basis for evaluating how his approach to judging compares to that of Justice

Scalia or any other jurist. While perhaps not espousing a particular judicial philosophy, Judge

Gorsuch’s judicial opinions and scholarly writings suggest that he could be seen to share many of

Justice Scalia’s views toward judging. For example, in a lecture delivered in April 2016 at Case

Western Reserve University School of Law, Judge Gorsuch commended Justice Scalia’s approach

toward judging, describing the late Justice’s “vision” of what a “good and faithful judge” entails

to be a “worthy one.”61 Specifically, in the lecture, Judge Gorsuch praised what he described as

Justice Scalia’s “traditional view of the judicial function,” in which a judge “strive[s] . . . to apply

the law as it is,” “looking to text, structure, and history to decide what a reasonable reader at the

time of the events in question would have understood the law to be.”62 Rejecting the view of the

judge as a “pragmatic social-welfare maximizer,”63 Judge Gorsuch, quoting Justice Scalia, argued

for a more limited role for judges in the American political system.64

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Agree or disagree with him, all of his colleagues on the bench shared his wisdom and his humor. And like them, I miss

him.”). These remarks echoed many of the sentiments in a lecture Judge Gorsuch gave on Justice Scalia in 2016. See

Neil M. Gorsuch, 2016 Sumner Canary Memorial Lecture: Of Lions and Bears, Judges and Legislators, and the

Legacy of Justice Scalia, 66 CASE W. RES. L. REV. 905, 905 (2016) [hereinafter Gorsuch, Lions].

See Adam J. White, Higher Justice, WEEKLY STANDARD (Feb. 20, 2017), http://www.weeklystandard.com/higherjustice/article/2006765 (“Between law school and private practice, Gorsuch clerked for three significant but quite

different judges, each of whom has a legacy in Gorsuch’s own work.”).

See Gorsuch Nomination, supra note 54 (statement of Judge Neil Gorsuch) (“I began my legal career working for

Byron White . . . . He was one of the smartest and most courageous men I’ve ever known. When Justice White retired,

he gave me the chance to work for Justice Kennedy, as well. Justice Kennedy was incredibly welcoming and gracious,

and like Justice White, he taught me so much. I am forever grateful. And if you’ve ever met Judge David Sentelle,

you’ll know just how lucky I was to land a clerkship with him right out of school.”).

See, e.g., White, supra note 58 (“Gorsuch seems to have adopted the best traits of both Supreme Court mentors:

White’s conservative temperament and respect for the people’s right to govern themselves and Kennedy’s recognition

that liberty and republican self-government require a constitutional structure to channel political passions toward

reasoned ends.”); Whizzer White’s Ghost, N.Y. SUN (Jan. 31, 2017), http://www.nysun.com/editorials/whizzer-whitesghost/89886/ (“Like White, Gorsuch is famed for being a straightforward, easily comprehensible legal writer. And our

guess is that if Judge Gorsuch makes it to the court, the ghost of Whizzer White will be waiting to greet him.”); Noah

Feldman, Neil Gorsuch, Elite Conservative, BLOOMBERG VIEW (Jan. 31, 2017),

https://www.bloomberg.com/view/articles/2017-02-01/neil-gorsuch-elite-conservative-for-supreme-court (suggesting

that Judge Gorsuch “might even move in the direction of Anthony Kennedy” if confirmed to the Court).

See Gorsuch, Lions, supra note 57, at 917.

Id. at 906.

Id. at 918. Here, Judge Gorsuch’s comments echo sentiments he had expressed in an article on the role of the

judiciary more than a decade earlier, before he was nominated to the Tenth Circuit. See Neil M. Gorsuch,

Liberals’N’Lawsuits, NAT’L REV. (Feb. 7, 2005) [hereinafter Gorsuch, Liberals], available at

http://www.nationalreview.com/article/213590/liberalsnlawsuits-joseph-6 (“But rather than use the judiciary for

extraordinary cases, von Drehle recognizes that American liberals have become addicted to the courtroom, relying on

judges and lawyers rather than elected leaders and the ballot box, as the primary means of effecting their social agenda

on everything from gay marriage to assisted suicide to the use of vouchers for private-school education.”).

See Gorsuch, Lions, supra note 57, at 917. In these writings, Justice Scalia voiced concerns that separation-of-powers

principles would be violated if the judiciary were to usurp the role of the legislature, as well as an interest in reducing

indeterminacy in the judicial process. See, e.g., ANTONIN SCALIA, A MATTER OF INTERPRETATION: FEDERAL COURTS

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Judge Neil M. Gorsuch: His Jurisprudence and Potential Impact on the Supreme Court

The themes highlighted in his 2016 lecture on Justice Scalia’s legacy previously appeared in

several of Judge Gorsuch’s opinions on the Tenth Circuit. Notably, in a number of cases, the

nominee rejected more flexible approaches to interpreting the Constitution in favor of

originalism.65 One such case is Cordova v. City of Albuquerque, wherein the Tenth Circuit

dismissed a lawsuit alleging that attorneys for the city of Albuquerque had maliciously prosecuted

the plaintiff in violation of the Fourth Amendment by charging him with assault after an

altercation with the police.66 In this case, Judge Gorsuch concurred in the judgment, grounding

his opinion in originalism and writing that the Constitution “isn’t some inkblot on which litigants

may project their hopes and dreams for a new and perfected tort law, but a carefully drafted text

judges are charged with applying according to its original public meaning.”67 The nominee

examined the Fourth Amendment’s text along with scholarly works on its historical

underpinnings to conclude that the Amendment does not include a right against malicious

prosecution.68

Likewise, in several opinions, Judge Gorsuch voiced sentiments similar to those of Justice Scalia

about the need for the “rule of law” be “a law of rules”69—a view that can be seen to favor a more

formalist approach to the law.70 For example, in Hydro Resources, Inc. v. EPA, Judge Gorsuch, on

behalf of a majority of the entire Tenth Circuit, concluded that the Environmental Protection

Agency had incorrectly determined that certain property was “Indian land,” requiring its owner to

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AND THE LAW 45–46 (1997).

See, e.g., United States v. Ackerman, 831 F.3d 1292, 1301 (10th Cir. 2016) (“[S]ince time out of mind the law has

prevented agents from exercising powers their principals do not possess and so cannot delegate . . . . That is a rule of

law the founders knew, understood, and undoubtedly relied upon when they drafted the Fourth Amendment . . . .”);

United States v. Carloss, 818 F.3d 988, 1009 (10th Cir. 2016) (Gorsuch, J., dissenting) (looking to “the common law at

the time of the founding” to determine whether the Fourth Amendment permits officers to approach a house and knock

on the front door, notwithstanding the presence of several “No Trespassing” signs); id. at 1015 (“Neither, of course, is

it our job to weigh [the] costs and benefits but to apply the [Fourth] Amendment according to its terms and in light of

its historical meaning.”); United States v. Krueger, 809 F.3d 1109, 1123 (10th Cir. 2015) (Gorsuch, J., concurring)

(“When interpreting the Fourth Amendment we start by looking to its original public meaning—asking what traditional

protections against unreasonable searches and seizures were afforded by the common law at the time of the framing.”

(internal citations and quotations omitted)); Williams v. Trammell, 782 F.3d 1184, 1219 (10th Cir. 2015) (Gorsuch, J.,

concurring) (“Indeed, executing someone for a strict liability offense would represent not only a highly ‘unusual’

punishment but one inimical to the common law at the time of the founding.”); Kerr v. Hickenlooper, 759 F.3d 1186,

1195 (10th Cir. 2014) (Gorsuch, J., dissenting from denial of rehearing en banc) (contending that the “scholarly

literature on the [Guarantee] Clause’s text and original meaning” indicate a lack of judicially manageable standards for

a court to interpret and enforce the Clause).

816 F.3d 645 (10th Cir. 2016).

Id. at 661 (Gorsuch, J., concurring).

Id. at 662–63.

See Antonin Scalia, Essay, The Rule of Law as a Law of Rules, 56 U. CHI. L. REV. 1175 (1989).

See, e.g., Gutierrez-Brizuela v. Lynch, 834 F.3d 1142, 1157 (10th Cir. 2016) (Gorsuch, J., concurring) (criticizing the

federal court’s use of a “multi-factor balancing test” to determine whether Chevron deference is appropriate); De Niz

Robles v. Lynch, 803 F.3d 1165, 1180 (10th Cir. 2015) (“Trying to commensurate incommensurable legal factors is

never an easy judicial chore—and the job isn’t made any easier when the number of factors we’re asked to juggle

proliferates.”); ACAP Fin., Inc. v. Sec. & Exch. Comm’n, 783 F.3d 763, 769 (10th Cir. 2015) (“No doubt the openended nature of the multi-factor balancing tests the SEC uses when setting sanctions could be attacked on a variety of

potential grounds.”); Hobby Lobby Stores, Inc. v. Sebelius, 723 F.3d 1114, 1157–58 (10th Cir. 2013) (Gorsuch, J.,

concurring) (noting the “bright-line” rule for distinguishing between jurisdictional requirements and claims-processing

requirements); see generally Kerr, 759 F.3d at 1195 (Gorsuch, J., dissenting) (lamenting the panel’s decision, which he

characterized as having assigned “the litigants and the district court to a kind of litigation limbo—the promise of many

more years wrestling with this case all without a wisp of an idea what rule of law might govern its disposition”).

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Judge Neil M. Gorsuch: His Jurisprudence and Potential Impact on the Supreme Court

obtain a mining permit from the agency.71 In so holding, the nominee adopted what he

characterized as a “simple and predictable” two-part test for determining what constitutes Indian

land.72 Judge Gorsuch’s en banc opinion thus rejected the government’s invitation to interpret the

operative statutory language according to an older, multi-factor test, which the nominee described

as consisting of “multifarious and incommensurable competing factors” that yielded

“unpredictable results” and “left the law and litigants confused.”73

Beyond voicing a preference for rules based adjudication in his written opinions, Judge Gorsuch

has argued more generally for simplification and clarity in the American legal system.74 In

particular, having expressed concerns over the costs of discovery and adequate representation, the

nominee has suggested a number of attorney-initiated reforms aimed at making the civil justice

system more accessible and affordable for both plaintiffs and defendants.75

More broadly, the views of Judge Gorsuch and Justice Scalia on the proper role of the judge seem

to align in that both have emphatically rejected what may be described as “results-oriented

judging” and, instead, emphasized that judges must render decisions that do not necessarily

conform to their personal preferences. Justice Scalia, for instance, often pointed to his vote to

strike down a law prohibiting flag burning as an example of how his judicial philosophy could

yield results that did not align with his own inclinations.76 Similarly, in a 2016 dissent, Judge

Gorsuch emphasized that the role of the judge is to “apply, not rewrite, the law enacted by the

people’s representatives,” noting that a “judge who likes every result he reaches is very likely a

bad judge.”77 Instead, Judge Gorsuch has repeatedly declared that the proper role of a court is to

interpret the law and not to “substitute” the court’s “views of optimal policy” for Congress’s

judgment.78 A number of the nominee’s opinions have noted his personal sympathies for

particular parties in the case, but distinguished these sympathies from what he viewed the law to

require.79

608 F.3d 1131, 1135 (10th Cir. 2010) (en banc).

Id. at 1164; see also id. at 1166 (“Under the proper test we adopt today, only two questions are relevant in assessing

claims of jurisdiction under § 1151(b): (1) Has Congress (or the Executive, acting pursuant to delegated authority)

taken some action explicitly setting aside the land in question for Indian use? (2) Is the land in question superintended

by the federal government?”).

Id. at 1164.

See generally Gorsuch, Law’s Irony, supra note 28, at 744–49 (discussing the increasing complexities of the civil

and criminal justice system).

See Neil M. Gorsuch, Access to Affordable Justice: A Challenge to the Bench, Bar, and Academy, 100 JUDICATURE

46, 47–48 (2016). In particular, Judge Gorsuch has proposed (1) relaxing the rules as to unauthorized practice of law,

id.at 48–49; (2) reforming procedural rules to set “early and firm” trial dates and to increase the use of mandatory

disclosures, id. at 50–51; and (3) changing legal education to allow for the practice of law after two years of law school

as opposed to three years, id. at 51–53. On this latter suggestion, the nominee may depart from the view of Justice

Scalia, who thought that the “the law-school-in-two-years proposals rest[]on the premise that law school is—or ought

to be—a trade school.” See Antonin Scalia, Commencement Address at William & Mary Law School: Reflections on

the Future of the Legal Academy 2 (May 11, 2014), https://law.wm.edu/news/stories/2014/documents2014/2014WMCommencementSpeech.pdf.

See CRS Scalia Report, supra note 8, at 28–29.

See A.M. ex rel. F.M. v. Holmes, 830 F.3d 1123, 1170 (10th Cir. 2016) (Gorsuch, J., dissenting). Judge Gorsuch

quoted this passage during his speech following the announcement of his nomination to the Supreme Court. See

Gorsuch Nomination, supra note 53 (statement of Judge Neil Gorsuch).

See United States v. Spaulding, 802 F.3d 1110, 1133 (10th Cir. 2015) (Gorsuch, J., dissenting); see also Prost v.

Anderson, 636 F.3d 578, 597 (10th Cir. 2011) (“[I]t is the job of this court, respecting the principles of judicial

restraint, to enforce Congress’s expressed purposes, not to replace them with our own.”).

See, e.g., Espinoza v. Ark. Valley Adventures, LLC, 809 F.3d 1150, 1158 (10th Cir. 2016) (“Enduring the death of a

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Judge Neil M. Gorsuch: His Jurisprudence and Potential Impact on the Supreme Court

Despite these parallels between the views of Justice Scalia and Judge Gorsuch, there are also

discernible differences in their views on the role of the judiciary. First, Judge Gorsuch’s approach

to judging can be seen to differ in tone and tenor from that of Justice Scalia. Like Justice Scalia,80

Judge Gorsuch has frequently been described as a talented writer.81 In particular, the nominee’s

judicial writings—which frequently employ vivid prose, memorable turns of phrase,82 and even

humor83—have been praised widely by legal observers for their clarity and accessibility.84 But

whereas Justice Scalia’s writing could be pointed and acerbic in disagreeing with his colleagues

on the bench,85 Judge Gorsuch’s judicial writings have been noted for their cordiality.86 His

(...continued)

close family member in tragic circumstances is among life’s bitterest challenges. The loss Ms. Apolinar’s family has

suffered is beyond words. But our charge is to follow the law. And in this case the law is just as the district court

described it, permitting the enforcement of the release in this case and requiring the entry of summary judgment.”); Fry

v. Am. Home Assur. Co., 636 F. App’x 764, 765 (10th Cir. 2016) (“After her husband was tragically killed while

working on an oil well, Eve Fry sued his employer, AOK Energy Services, in Oklahoma state court. But Ms. Fry faced

a problem: Oklahoma’s Workers’ Compensation Act.”); Browder v. City of Albuquerque, 787 F.3d 1076, 1084 (10th

Cir. 2015) (“We face a traffic accident, a deeply tragic traffic accident, but also exactly the sort of thing state courts

have long and ably redressed.”); United States v. Christie, 717 F.3d 1156, 1160 (10th Cir. 2013) (similar); Wilson v.

City of Lafayette, 510 F. App’x 775, 780 (10th Cir. 2013) (similar); Compass Envtl., Inc. v. Occupational Safety &

Health Review Comm’n, 663 F.3d 1164, 1171 (10th Cir. 2011) (Gorsuch, J., dissenting) (similar); Thompson R2-J Sch.

Dist. v. Luke P., 540 F.3d 1143, 1151 (10th Cir. 2008) (similar).

See, e.g., Jeet Heer, Antonin Scalia Is the Supreme Court’s Greatest Writer, NEW REPUBLIC (June 26, 2015),

https://newrepublic.com/article/122167/antonin-scalia-supreme-courts-greatest-writer (“There have always been . . .

judges who craft their words with brio, force, and wit, whose obiter dicta are rife with vernacular charm. This is the

tradition of Supreme Court justices Benjamin Cardozo, Oliver Wendell Holmes, and Robert Jackson. The one current

justice who has the strongest claim to belong in this elite pantheon is Antonin Scalia.”).

See John O. McGinnis, A Great Legal Pen, CITY J. (Feb. 1, 2017), https://www.city-journal.org/html/great-legal-pen15000.html (“Gorsuch is . . . one of the best writers in the entire federal judiciary. That is not just my assessment, but

that of Howard Bashman, who runs the leading blog on appellate decisions. It is also the verdict of the Green Bag, a

magazine that makes annual assessment of legal writing.”).

See, e.g., Genova v. Banner Health, 734 F.3d 1095, 1096 (10th Cir. 2013) (“When holding a hammer, every problem

can seem a nail.”); Winzler v. Toyota Motor Sales U.S.A., Inc., 681 F.3d 1208, 1209 (10th Cir. 2012) (“Mootness has

many moods.”); Lee v. Max Int’l, LLC, 638 F.3d 1318, 1320 (10th Cir. 2011) (“We view challenges to a district

court’s discovery sanctions order with a gimlet eye.”).

See, e.g., El Encanto, Inc. v. Hatch Chile Co., 825 F.3d 1161 (10th Cir. 2016) (“The Hatch Valley may be to chiles

what the Napa Valley is to grapes. Whether it’s the soil, the desert’s dry heat, or the waters of the Rio Grande, the little

town of Hatch, New Mexico, and its surroundings produce some of the world’s finest chile peppers.”); W. World Ins.

Co. v. Markel Am. Ins. Co., 677 F.3d 1266, 1267 (10th Cir. 2012) (“Haunted houses may be full of ghosts, goblins, and

guillotines, but it’s their more prosaic features that pose the real danger. Tyler Hodges found that out when an evening

shift working the ticket booth ended with him plummeting down an elevator shaft.”); United States v. Rosales-Garcia,

667 F.3d 1348 (10th Cir. 2012) (“In the richness of the English language, few things can create as much mischief as

piling prepositional phrase upon prepositional phrase.”).

See, e.g., Michael McConnell, I Served With Judge Gorsuch. This Is My Reflection on His Character, THE HILL (Feb.

2, 2017) (“Many have commented on Gorsuch’s writing skill, and it is true that he is one of the best writers in the

judiciary today. More important than style, though, is that he sets forth all positions fairly and gives real reasons—not

just conclusions—for siding with one and rejecting the other. And he does it in language that is accessible to nonlawyers.”); Joe Palazzolo, Supreme Court Nominee Takes Legal Writing to Next Level, WALL ST. J. (Jan. 31, 2017),

available at https://www.wsj.com/articles/supreme-court-nominee-takes-legal-writing-to-next-level-1485912410

(“Judge Gorsuch’s opinions strive for accessibility. He tries to grab readers with his openings.”); Eric Citron, Potential

Nominee Profile: Neil Gorsuch, SCOTUSBLOG (Jan. 13, 2017), http://www.scotusblog.com/2017/01/potentialnominee-profile-neil-gorsuch/ (“For one thing, the great compliment that Gorsuch’s legal writing is in a class with

Scalia’s is deserved: Gorsuch’s opinions are exceptionally clear and routinely entertaining; he is an unusual pleasure to

read, and it is always plain exactly what he thinks and why.”).

See, e.g., Obergefell v. Hodges, --- U.S. ---, 135 S. Ct. 2584, 2630 n.22 (2015) (Scalia, J., dissenting) (“If, even as the

price to be paid for a fifth vote, I ever joined an opinion for the Court that began: ‘The Constitution promises liberty to

all within its reach, a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and

(continued...)

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Judge Neil M. Gorsuch: His Jurisprudence and Potential Impact on the Supreme Court

dissents, in particular, often express his agreement with or admiration for, at least, certain aspects

of the majority’s opinion.87

The differences in Justice Scalia’s and Judge Gorsuch’s writing styles may indicate broader

contrasts between the two jurists; the nominee may be more focused on collegiality and

consensus-building than the Justice he could replace.88 During his career on the High Court,

Justice Scalia frequently authored fairly broad and uncompromising opinions that did not garner

the votes of a majority of the Court.89 In contrast, Judge Gorsuch’s judicial record may reflect

comments he made during his confirmation hearing for his Tenth Circuit appointment, wherein he

noted the importance of “trying to reach unanimity where possible.”90 As Table 1 indicates,

(...continued)

express their identity,’ I would hide my head in a bag. The Supreme Court of the United States has descended from the

disciplined legal reasoning of John Marshall and Joseph Story to the mystical aphorisms of the fortune cookie.”);

Holland v. Illinois, 493 U.S. 474, 486 (1990) (Scalia, J.) (“Justice [Marshall’s] dissent rolls out the ultimate weapon,

the accusation of insensitivity to racial discrimination—which will lose its intimidating effect if it continues to be fired

so randomly.”); Webster v. Reprod. Health Servs., 492 U.S. 490, 532 (1989) (Scalia, J., concurring in part and

concurring in the judgment) (“Justice [O’Connor’s] assertion that a ‘fundamental rule of judicial restraint’ requires us

to avoid reconsidering Roe, cannot be taken seriously.” (internal citation omitted)).

Brent Kendall & Jess Bravin, Neil Gorsuch’s Personality Could Shift Supreme Court’s Dynamic, WALL ST. J. (Feb.

6, 2017), https://www.wsj.com/articles/neil-gorsuchs-style-could-shift-supreme-courts-dynamic-1486401701 (“People

who know Judge Gorsuch . . .say he is unfailingly respectful and, . . . extraordinarily careful with his word choice, tone

and his approach when communicating with other judges.” (internal quotation marks and citations omitted)).

See, e.g., Ragab v. Howard, 841 F.3d 1134, 1139 (10th Cir. 2016) (“My colleagues are of course correct that

‘arbitration clauses are only valid if the parties intended to arbitrate.’ . . . But, respectfully, I just don’t see any doubt

that the parties before us did intend to arbitrate.”); A.M. ex rel. F.M. v. Holmes, 830 F.3d 1123, 1170 (10th Cir. 2016)

(Gorsuch, J., dissenting) (“So it is I admire my colleagues today, for no doubt they reach a result they dislike but

believe the law demands—and in that I see the best of our profession and much to admire.”); United States v.

Spaulding, 802 F.3d 1110, 1128 (10th Cir. 2015) (“Of course, my colleagues take no pleasure in reaching their result: it

is simply one they believe the law compels. My colleagues, too, offer a very thoughtful and persuasive opinion in

support of their conclusion.”); Cortez v. McCauley, 478 F.3d 1108, 1138 (10th Cir. 2007) (en banc) (Gorsuch, J.,

concurring in part and dissenting in part) (similar).

On the other hand, one could argue that collegiality and consensus building is more commonplace on a federal

appeals court than on the Supreme Court. See Lee Epstein, William M. Landes & Richard A. Posner, Why (and When)

Judges Dissent: A Theoretical and Empirical Analysis, 3 J. LEGAL ANALYSIS 101, 135 (2011) (“We therefore predict,

and we find, a higher dissent rate in the Supreme Court than in the courts of appeals. In fact a much higher rate: as

shown in Figure 1, it is 62 percent in the Supreme Court and only 2.6 percent in the courts of appeals.”); but see infra

note 98 and accompanying text (comparing Justice Scalia’s circuit court record to that of Judge Gorsuch).

See, e.g., Kerry v. Din, --- U.S. ---, 135 S. Ct. 2128, 2139 (2015) (Kennedy, J., concurring in the judgment)

(declining to join Justice Scalia’s opinion holding that a citizen does not have a protected liberty interest in the visa

application of her alien spouse); Hudson v. Michigan, 547 U.S. 586, 602 (2006) (Kennedy, J., concurring in part and

concurring in judgment) (declining to provide the fifth vote for Justice Scalia’s opinion openly questioning the

continued viability of the exclusionary rule); Capitol Square Review & Advisory Bd. v. Pinette, 515 U.S. 753, 764

(1995) (Scalia, J.) (receiving only four votes for the proposition that “it is no violation [of the Establishment Clause] for

the government to enact neutral policies that happen to benefit religion”); Planned Parenthood v. Casey, 505 U.S. 833,

846 (1992) (joint opinion of Kennedy, O’Connor, & Souter, JJ.) (rejecting Justice Scalia’s argument to overturn Roe

entirely); Lujan v. Defs. of Wildlife, 504 U.S. 555, 580 (1992) (Kennedy, J., concurring) (declining to join part of

Justice Scalia’s opinion holding that an injury for purposes of Article III standing needed to equate with injuries found

at common law); Harmelin v. Michigan, 501 U.S. 957, 996 (1991) (Kennedy, J., concurring) (refusing to join Justice

Scalia’s opinion arguing that the Eighth Amendment contains no proportionality guarantee); Michael H. v. Gerald D.,

491 U.S. 110, 127–28 n.6 (1989) (Scalia, J.) (delivering the opinion of the court except for footnote six, which broadly

argued that due process rights should be viewed with heightened specificity); see generally DAVID A. SCHULTZ &

CHRISTOPHER E. SMITH, THE JURISPRUDENTIAL VISION OF JUSTICE ANTONIN SCALIA 99–100 (1996) (contending that

Justice Scalia’s “clear, fixed vision of how cases should be decided” may have prevented other Justices from joining

his opinions).

See Gorsuch Confirmation Hearing, supra note 43, at 36.

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Judge Neil M. Gorsuch: His Jurisprudence and Potential Impact on the Supreme Court

during the decade that Judge Gorsuch served on the Tenth Circuit, his colleagues dissented from

majority opinions Judge Gorsuch wrote less frequently than they dissented from the majority

opinions of other judges who served on active status on the Tenth Circuit during that entire time

period.

In addition, while the existence of a concurrence may not necessarily signal disagreement with

the majority opinion,91 some scholars have suggested that separate opinions can be used to gauge

the ability of a judge to secure a unified view of the court.92 To the extent such views are

probative, Judge Gorsuch’s majority opinions were accompanied by separate opinions roughly

3.3 percent of the time.93 By comparison, only one of the six active judges serving on the Tenth

Circuit at the exact same time as the nominee had a lower rate of drawing a separate opinion

when writing for the majority.94 Although the Tenth Circuit has tended to generate few dissents

overall,95 the relative infrequency with which fellow judges dissented or otherwise wrote

separately from Judge Gorsuch’s majority opinions may suggest the nominee places a high value

on reaching consensus in the opinions he writes96 or, perhaps, has the ability to persuade others to

join his opinions.97 In this sense, Judge Gorsuch’s approach can be seen to stand in contrast to that

of Justice Scalia in his own majority opinions when he served on a circuit court.98

As one commentator has noted, while “a study of dissent alone will exclude instances of judicial disagreement,”

there may be “compelling reasons to concentrate on the frequency of dissent alone.” See Jeffrey A. Lefstin, The

Measure of the Doubt: Dissent, Indeterminacy, and Interpretation at the Federal Circuit, 58 HASTINGS L.J. 1025,

1051–52 (2007) (“The concurring judge is not so easy to pin down: he may agree with the outcome but disagree with

the reasoning adopted by the majority; he may agree that the legal regime dictates the outcome of the case but wish to

express dissatisfaction with that legal regime; he may be engaged in preemptive exegesis of the opinion to influence

future cases; he may wish to criticize (or expand) dictum in the majority opinion. Only the first of these possibilities

represents a disagreement arising from the indeterminacy of the legal regime, and disentangling them requires

subjective judgments by the researcher about the degree to which the concurring judge expresses agreement or

disagreement with the majority opinion.”); see generally Wald, supra note 30, at 1415 (“Concurrences . . . serve as

vehicles for judges to present additional arguments rejected or ignored by the majority, to preserve doubts or

reservations about the majority opinion for the future, to caution against its too-broad application, to disagree with all

or part of its reasoning. The tone of concurrences is usually calm and rational, not agitated as in a dissent—after all,

their authors agree with the result.”).

Cf. Stephen Choi & Mitu Gulati, A Tournament of Judges?, 92 CALIF. L. REV. 299, 310–13 (2004) (using dissents

and concurrences by the studied judge as a proxy for how many disagreements a judge had with his or her colleagues);

Corey Rayburn Yung, A Typology of Judging Styles, 107 NW. U. L. REV. 1757, 1775 (2013) (“Two types of

disagreements were incorporated in the measurement: concurrences and dissents. In both situations, a judge presumably

writes separately because she cannot find common ground with other written opinions.”).

See infra Table 1, Dissents and Concurrences from Majority Opinions on the Tenth Circuit.

Id.

See supra note 28.

Cf. Lee Epstein, Jeffrey A. Segal & Harold J. Spaeth, The Norm of Consensus on the U.S. Supreme Court, 45 AM. J.

POL. SCI. 362, 364–65 (2001) (arguing that Justices, driven by a norm of suppressing dissent in order to preserve

consensus, will write broad unanimous opinions).

See Chad Flanders, Toward A Theory of Persuasive Authority, 62 OKLA. L. REV. 55, 71–72 (2009) (“[A] judge

writing an opinion may have to persuade a majority of his or her colleagues to agree with her. This will entail

modifying the judge’s position to anticipate objections, or perhaps even moderating the decision in order to forge a

winning coalition. An opinion that wins over one judge on a three-judge panel may be less persuasive than an opinion

that garners unanimity.”).

The Supreme Court has a far higher dissent rate than the federal appeals courts. See Epstein, Landes & Posner, supra

note 88, at 135. Thus, a LEXIS search was conducted of then Judge Scalia’s opinions on the D.C. Circuit. That search

indicated that while on the D.C. Circuit, then Judge Scalia authored 101 majority opinions, 12 of which generated a

dissent (11.9% of opinions), and 20 of which drew any type of separate opinion (i.e., concurrence or dissent) (19.8%).

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Judge Neil M. Gorsuch: His Jurisprudence and Potential Impact on the Supreme Court

Table 1. Dissents and Concurrences from Majority Opinions on the Tenth Circuit

August 8, 2006, through January 31, 2017

Author of the

Majority

Opinion

Total Number

of Authored

Majority

Opinions*

Number of

Majority

Opinions

Accompanied

by a Dissent*

Percentage of

Majority

Opinions

Accompanied

by a Dissent

Number of

Majority Opinions

Accompanied by a

Separate Opinion

(Dissent or

Concurrence)*

Percentage of

Majority

Opinions

Accompanied

by a Separate

Opinion

Neil M.

Gorsuch

(2006–present)

778

1.5%

3.3%

Mary Beck

Briscoe

(1995–present)

869

3.3%

5.3%

Harris L. Hartz

(2001–present)

1013

1.8%

4.0%

Jerome A.

Holmes

(2006–present)

689

1.8%

4.1%

Paul Joseph

Kelly, Jr.

(1992–present)

918

4.4%

5.9%

Carlos F. Lucero

(1995–present)

882

2.4%

3.5%

Timothy M.

Tymkovich

(2003–present)

940

2.0%

3.1%

Source: Congressional Research Service.

Notes: To generate this table, a search was conducted using the LEXIS database for all Tenth Circuit decisions

from the date of Judge Gorsuch’s commission through the date of his nomination to the Supreme Court. To

ensure that the search reflected a consistent and similar caseload, the search was limited to majority opinions

written by judges who, like Judge Gorsuch, were on active status as circuit judges during this entire period.

Searches for particular judges were filtered by the LEXIS document segment terms OPINIONBY. The resulting

majority opinions were then searched for (1) any dissenting or partially dissenting opinions (using the LEXIS

document segment DISSENTBY) and (2) any concurring opinions (using the LEXIS document segment

CONCURBY). Any concurrences by the author of the majority opinion were eliminated.

*As reported on LEXIS. The table is dependent on coding done by the LEXIS database and is not intended to

provide precise numbers on Judge Gorsuch or his colleague’s opinions. For a complete listing of Judge Gorsuch’s

opinions, including opinions that may not have been entered into LEXIS, see CRS Report R44772, Majority,

Concurring, and Dissenting Opinions by Judge Neil M. Gorsuch, coordinated by (name redacted) .

While Judge Gorsuch’s majority opinions garnered few dissents, he has displayed relatively more

willingness to dissent from others’ majority opinions than some colleagues on the Tenth Circuit,

as Table 2 below shows. Nonetheless, the rate at which Judge Gorsuch dissented from Tenth

Circuit decisions99—1.6 percent of all cases in which he participated—places him in the middle

Judge Gorsuch dissented from two majority opinions while sitting by designation on the Ninth Circuit. See Blausey

v. U.S. Trustee, 552 F.3d 1124, 1134 (9th Cir. 2009) (Gorsuch, J., dissenting); Salmon v. Astrue, 309 F. App’x 113,

116 (9th Cir. 2009) (Gorsuch, J., dissenting).

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Judge Neil M. Gorsuch: His Jurisprudence and Potential Impact on the Supreme Court

of his colleagues and is less frequent than the rate at which Justice Scalia dissented when he

served as an appellate judge on the D.C. Circuit.100

Table 2. Dissents and Concurrences Authored on the Tenth Circuit

August 8, 2006, through January 31, 2017

Judge

Total

Number of

Decisions in

Which

Dissent or

Concurrence

Could

Occur*

Number of

Dissents*

Dissent Rate

Number of

Separate

Opinions*

(Dissent or

Concurrence)

(as Reported

by LEXIS)

Separate

Opinion Rate

Neil M.

Gorsuch

(2006–present)

2060

33a

1.6%

3.1%

Mary Beck

Briscoe

(1995–present)

1836

2.1%

3.5%

Harris L. Hartz

(2001–present)

2159

1.7%

4.1%

Jerome A.

Holmes

(2006–present)

1814

0.6%

1.7%

Paul Joseph

Kelly, Jr.

(1992–present)

2224

1.2%

1.7%

Carlos F. Lucero

(1995–present)

2229

1.9%

3.1%

100

A LEXIS search of cases that then Judge Scalia heard on the D.C. Circuit shows that he participated in 224 cases in

which one of his colleagues wrote the majority opinion. Of these 224, he dissented in 24, or 10.7%, and wrote

separately in 31, or 13.8%. Because the dockets of the judicial circuits may vary, as do the judicial philosophies and

temperaments of the judges who sit on courts in these circuits, it cannot be said with certainty that a judge on one

appellate court would necessarily have a similar rate of agreement with his colleagues if he sat on a different court.

Judge Gorsuch, for example, sat by designation on the D.C. Circuit for six cases, in which he joined unanimous panel

opinions in each case. He also sat by designation on the Ninth Circuit for nine cases, where he wrote dissenting

opinions in two. See Salmon, 309 F. App’x 113; Blausey, 552 F.3d 1124. The limited number of cases heard by Judge

Gorsuch while sitting in designation would seem to limit the value of any comparison between Judge Gorsuch’s

experiences sitting by designation on the D.C. or Ninth Circuit with his time on the Tenth Circuit.

Arguably, this could suggest that the nominee values collegiality and consensus more than some jurists. See Epstein,

Landes, & Posner, supra note 88, at 135 (arguing that the frequency with which a judge dissents may reflect the judge’s

views about the costs of “impaired collegiality” as compared to the benefits of influencing or clarifying the law). In his

nonjudicial writings, Judge Gorsuch has downplayed the lack of collegiality among federal judges. See, e.g., Gorsuch,

Law’s Irony, supra note 28, at 752–53 (“But to admit that disagreements do and will always exist over hard and fine

questions of law doesn’t mean those disagreements are the products of personal will or politics rather than the products

of diligent and honest efforts by all involved to make sense of the legal materials at hand.”); Gorsuch, Lions, supra note

57, at 916–17 (“The fact is, over 360,000 cases are filed every year in our federal courts. Yet in the Supreme Court, a

Justice voices dissent in only about 50 cases per year. My law clerks reliably inform me that’s about 0.014% of all

cases. Focusing on the hard cases may be fun, but doesn’t it risk missing the forest for the trees?”).

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Judge Neil M. Gorsuch: His Jurisprudence and Potential Impact on the Supreme Court

Judge

Total

Number of

Decisions in

Which

Dissent or

Concurrence

Could

Occur*

Number of

Dissents*

Dissent Rate

Number of

Separate

Opinions*

(Dissent or

Concurrence)

(as Reported

by LEXIS)

Separate

Opinion Rate

Timothy M.

Tymkovich

(2003–present)

2065

1.3%

1.9%

Source: Congressional Research Service.

Notes: To generate this table, a search was conducted using the LEXIS database for all Tenth Circuit decisions

from the date of Judge Gorsuch’s commission through the date of his nomination to the Supreme Court. To

ensure that the search reflected a consistent and similar caseload, the search was limited to majority opinions

written by judges who, like Judge Gorsuch, were on active status as circuit judges during this entire period. The

“Total Number of Decisions in Which Dissent or Concurrence Could Occur” was determined by using the

LEXIS document segment terms JUDGES and OPINIONBY. Dissents and concurrences were determined by

using the LEXIS document segment terms DISSENTBY and CONCURBY. Any recusals by the seven circuit

judges were eliminated. Any concurrences by the author of the majority opinion were also eliminated.

*As reported on LEXIS. The table is dependent on coding done by the LEXIS database and is not intended to

provide precise numbers on Judge Gorsuch or his colleague’s opinions. For a complete listing of Judge Gorsuch’s

opinions, including opinions that may not have been entered into LEXIS, see CRS Report R44772, Majority,

Concurring, and Dissenting Opinions by Judge Neil M. Gorsuch, coordinated by ( name redacted) .

a. Note that Judge Gorsuch dissented from two majority opinions while sitting by designation on the Ninth

Circuit. See Blausey v. U.S. Trustee, 552 F.3d 1124, 1134 (9th Cir. 2009) (Gorsuch, J., dissenting); Salmon v.

Astrue, 309 F. App’x 113, 116 (9th Cir. 2009) (Gorsuch, J., dissenting).

On the other hand, there may be limits to what can be gleaned from this data. The choice to write

separately is one that stems from various factors, and may simply depend on the personality and

preferences of an individual judge, or the nature of the dispute before the court.101 Thus, the data

may reflect other factors. For instance, the fact that Judge Gorsuch’s majority opinions garnered

relatively few dissents may be a product of the cases on which he wrote, which, in turn, are

assigned by the most senior active judge on each panel.102 This means that, at least early in Judge

Gorsuch’s career on the Tenth Circuit, he may not have been assigned to write the most

challenging or controversial cases that tend to generate dissent.103 Perhaps more importantly,

because separate opinions are infrequent on the Tenth Circuit,104 the dataset is relatively small,

and only a handful of dissents and concurrences distinguish Judge Gorsuch’s numbers from those

of his colleagues.

101

See supra notes 30–31.

See PRACTITIONERS’ GUIDE TO THE UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT 62 (2016),

https://www.ca10.uscourts.gov/sites/default/files/clerk/UPDATED%20Practitioner%27s%20Guide%2011-212016.pdf.

103

See Henry T. Greely, Quantitative Analysis of A Judicial Career: A Case Study of Judge John Minor Wisdom, 53

WASH. & LEE L. REV. 99, 139 (1996) (arguing that because “who writes the majority opinion is decided generally by

the senior active judge on a panel” “assigning judges [may assign] less interesting or challenging majority opinions” to

other judges out of a concern for these judges or “out of a desire to keep a challenging opinion for himself or herself”);

Jeremy W. Bock, Restructuring the Federal Circuit, 3 N.Y.U. J. INTELL. PROP. & ENT. L. 197, 245 n.264 (2014)

(arguing that “[b]ecause the presiding judge (or the most senior active judge in the majority if the presiding judge

dissents) has the power to assign opinion authorship, the active judges on the court with the highest levels of seniority

may exert a disproportionate influence on the shape and direction” of federal appellate law).

104

See supra note 28.

102

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Judge Neil M. Gorsuch: His Jurisprudence and Potential Impact on the Supreme Court

Nonetheless, when coupled with broader comments made by Judge Gorsuch’s colleagues about

his approach to judging, the findings in Table 1 and Table 2 may be noteworthy. For example,

Professor Michael McConnell of Stanford University, who served on the Tenth Circuit with Judge

Gorsuch from 2006 until 2009, described Judge Gorsuch as “unfailingly cordial and collegial,”

aiming to “find[] common ground” while being “scrupulously respectful of the other side, in tone

and in substance.”105 Likewise, another former colleague, Robert Henry, now the President of

Oklahoma City University, described Judge Gorsuch’s “judicial temperament” as “superb.”106

Judge Gorsuch’s approach to judging may also differ in substance from that of Justice Scalia. In

contrast to the oft quoted sentiment that “if it is not necessary to decide more, it is necessary not

to decide more,”107 Justice Scalia regularly criticized majority opinions that, in his view, failed to

provide broader or clearer guidance to the lower courts because the opinions adopted a more

minimalist approach.108 While the nominee has not been immune from criticism that particular

majority opinions he wrote swept too broadly,109 in contrast to Justice Scalia, Judge Gorsuch’s

writings have generally espoused a more minimalist role for courts.110 For example, he noted in a

105

See McConnell, supra note 84.

See David G. Savage, Scalia’s Views Mixed with Kennedy’s Style: Meet Neil Gorsuch, Trump’s Pick for the

Supreme Court, L.A. TIMES (Jan. 31, 2017) (statement of Robert Henry), http://www.latimes.com/politics/la-na-polgorsuch-supreme-court-20170131-story.html; see generally Jimmy Hoover, Similar on The Law, Gorsuch Differs from

Scalia in Style, LAW360 (Feb. 1, 2017), https://www.law360.com/tax/articles/887248 (“But in contrast to the overlap

with Scalia’s legal outlook, interviews with individuals close to Gorsuch ascribe a ‘Western, laid-back air’ and

‘incredibly collegial’ demeanor that departs sharply from the combative bearing Scalia was famous for.”). Such

sentiments were echoed by practitioners before the Tenth Circuit. Anonymous evaluations in the Almanac of the

Federal Judiciary uniformly describe his legal ability and demeanor in positive terms, describing him as “cerebral,”

“very courteous and professional,” and a “probing” but respectful questioner during oral arguments. See Neil M.

Gorsuch, 2 ALMANAC OF THE FED. JUDICIARY, 2017 WL 14738.

107

PDK Labs., Inc. v. Drug Enf’t Agency, 362 F.3d 786, 799 (D.C. Cir. 2004) (Roberts, J., concurring).

108

See, e.g., Bond v. United States, --- U.S. ---, 134 S. Ct. 2077, 2094 (2014) (Scalia, J., concurring) (arguing that the

Court “shirk[ed] its job” by resolving a case on statutory, as opposed to constitutional grounds); NASA v. Nelson, 562

U.S. 134, 164 (2011) (Scalia, J., concurring) (“At this point the reader may be wondering: ‘What, after all, is the harm

in being minimalist and simply refusing to say that violation of a constitutional right of informational privacy can never

exist? . . . .’ Well, there is harm. The Court’s never-say-never disposition does damage for several reasons.”); Hein v.

Freedom from Religion Found., Inc., 551 U.S. 587, 633 (2007) (“Minimalism is an admirable judicial trait, but not

when it comes at the cost of meaningless and disingenuous distinctions that hold the sure promise of engendering

further meaningless and disingenuous distinctions in the future.”); Fed. Election Comm’n v. Wis. Right to Life, Inc.,

551 U.S. 449, 498 n.7 (2007) (Scalia, J., dissenting) (“This faux judicial restraint is judicial obfuscation.”).

109

See, e.g., Hernandez v. Story, 459 F. App’x 697, 700 (10th Cir. 2012) (Lucero, J., concurring) (“I write separately

because the majority proceeds to unnecessarily reach the second prong of the qualified immunity analysis, and in doing

so, interjects dicta about plaintiffs’ obligations in this context.”); Prost v. Anderson, 636 F.3d 578, 599 (10th Cir. 2011)

(Seymour, J., dissenting) (“The majority opinion, in contrast, sweeps far beyond this jurisdictional imperative.”);

McClendon v. City of Albuquerque, 630 F.3d 1288, 1299 (10th Cir. 2011) (Lucero, J., concurring) (arguing that parts

of the majority opinion were “analytically unnecessary and . . . in the nature of dicta.”); Lexington Ins. Co. v. Precision

Drilling Co., L.P., 830 F.3d 1219, 1224 (10th Cir. 2016) (Bacharach, J., concurring) (“I write separately only with

respect to the lead opinion’s analysis of the absurdity doctrine. . . . In my view, Lexington waived this argument. And

even if this argument had been preserved, I would reject it without defining the outer contours of the absurdity doctrine

in Wyoming.”). Nonetheless, adherence to judicial restraint may be in the eye of the beholder, as, in response to one

dissent, the nominee argued that his approach was “far more judicially restrained” than that of his colleague. See, e.g.,

Prost, 636 F.3d at 596 (majority opinion) (“In the end, the concurrence’s claim to judicial restraint is simply

unconvincing. Under its approach, the concurrence would have us bypass the question what Congress actually intended

and apply the circuit foreclosure test without worrying about its provenance in the statutory text; handle plenty of

knotty and novel legal questions about the test’s application, in the process creating a significant and entangling body

of advisory law about a test Congress never authorized; disagree with the Eighth Circuit’s understanding of its own

precedent; and still invite a separate schism with the Ninth Circuit.”).

110

See, e.g., Gorsuch, Law’s Irony, supra note 28, at 752 (discussing the “relatively modest station [judges are] meant

(continued...)

106

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2012 dissent that “[c]aution is always warranted when venturing down the road of deciding a

weighty question of first impression and recognizing a previously unrecognized constitutional

right.”111 And in a 2009 concurrence, the nominee wrote that “[j]udicial restraint usually means

answering the questions we must, not those we can.”112 Indeed, in a number of opinions the

nominee expressly limited the scope of the majority opinions he authored.113 He has also

frequently concurred or dissented to take issue with majority opinions that, in his view, reached

issues that were unnecessary to the court’s ultimate holding.114 In a similar vein, while the

(...continued)

to occupy in a democratic society”); Valley Forge Ins. Co. v. Health Care Mgmt. Partners, LTD., 616 F.3d 1086, 1094

(10th Cir. 2010) (“Judicial restraint, after all, usually means answering only the questions we must, not those we can.”);

United States v. Pope, 613 F.3d 1255, 1262 n.1 (10th Cir. 2010) (“As a matter of judicial restraint, we generally leave

the resolution of questions of law to cases where they make a difference.”). In three opinions, Judge Gorsuch quoted

Chief Justice Roberts in PDK Labs, Inc., see supra note 107. See Valley Forge Ins., 616 F.3d at 1094; Mink v. Knox,

613 F.3d 995, 1013 (10th Cir. 2010) (Gorsuch, J., concurring); Wyoming v. Dep’t of Interior, 587 F.3d 1245, 1252

(10th Cir. Wyo. 2009). In contrast, per a LEXIS search reviewing the opinions written by all of Judge Gorsuch’s

colleagues on the Tenth Circuit, one other judge quoted the same language during the nominee’s tenure on the appellate

court. See Prost, 636 F.3d at 599 (Seymour, J., dissenting) (quoting PDK, Labs, Inc., 362 F.3d at 799 (Roberts, J.,

concurring)). For a discussion of Judge Gorsuch’s minimalist tendencies, see Melissa Hart, Yes, the GOP Broke

Supreme Court Nominations. But Blocking Gorsuch Won’t Fix Them, WASH. POST (Feb. 2, 2017),

https://www.washingtonpost.com/posteverything/wp/2017/02/02/yes-the-gop-broke-supreme-court-nominations-butblocking-gorsuch-wont-fix-them/?utm_term=.5c3b2e86a63f (“[Judge Gorsuch] cares about procedure. His decisions

reflect close attention to whether and when the attorneys in appeals raised their arguments and whether that might limit

the scope of the issues on which the court can rule. He has declined to address questions because they were not

properly raised and presented.”); Matthew Wessler, Considering the Nomination of Neil Gorsuch to the Supreme Court,

YOUTUBE (Feb. 23, 2017), https://www.youtube.com/watch?v=YzoNi7pVX0o (noting the “dissonance” from the

“mine-run” of Judge Gorsuch opinions and his opinion in Gutierrez-Brizuela, which “stakes out some ground that is

controversial”).

111

Hooks v. Workman, 689 F.3d 1148, 1208 (10th Cir. 2012) (Gorsuch, J., dissenting).

112

Fisher v. City of Las Cruces, 584 F.3d 888, 903 (10th Cir. 2009) (Gorsuch, J., concurring).

113

See, e.g., United States v. Makkar, 810 F.3d 1139, 1148 (10th Cir. 2015) (“We see no need, however, to resolve the

defendants’ additional objections along these and other lines. Whether or not their arguments bear merit, we think the

essential point by now amply evident: their convictions rest on legal errors that cannot be easily dismissed as

harmless.”); Teamsters Local Union No. 455 v. NLRB, 765 F.3d 1198, 1205 (10th Cir. 2014) (“In saying this much we

don’t mean to suggest we endorse every jot and tittle in the administrative precedents we’ve discussed. To resolve this

case, we need and do hold only that the Board’s refusal to order additional remedial measures wasn’t arbitrary in light

of the administrative precedents the union has identified.”); United States v. Christie, 717 F.3d 1156, 1175 (10th Cir.

2013) (similar); Kerns v. Bader, 663 F.3d 1173, 1182 (10th Cir. 2011) (similar); Valley Forge Ins., 616 F.3d at 1094

(similar).

114

See, e.g., Jefferson Cty. Sch. Dist. R-1 v. Elizabeth E. ex rel. Roxanne B., 702 F.3d 1227, 1243 (10th Cir. 2012)

(Gorsuch, J., concurring) (“But it is equally clear that a new test isn’t necessary to the disposition of this case.”);

Hooks, 689 F.3d at 1209 (Gorsuch, J., dissenting) (“[O]ffering any view on whether such a new constitutional right

should be recognized is simply unnecessary in this case.”); United States v. Benard, 680 F.3d 1206, 1215 (10th Cir.

2012) (similar); Wilderness Soc’y v. Kane Cty., Utah, 632 F.3d 1162, 1180 (10th Cir. 2011) (en banc) (Gorsuch, J.,

concurring) (similar); Mink v. Knox, 613 F.3d 995, 1013 (10th Cir. 2010) (Gorsuch, J., concurring) (similar); Wilson v.

Workman, 577 F.3d 1284, 1320 (10th Cir. 2009) (Gorsuch, J., dissenting) (similar). See also Gorsuch Confirmation

Hearing, supra note 43, at 36 (“You do not treat [lawyers] as a cat’s paw.”). Judge Gorsuch has also criticized judicial

opinions that have strayed from the parties’ briefings, voicing concerns about the judiciary operating outside of the

adversarial system. See, e.g., WWC Holding Co. v. Sopkin, 488 F.3d 1262, 1282 (10th Cir. 2007) (Gorsuch, J.,

dissenting) (“At the same time, this case could have been readily resolved on the basis of the parties’ actual arguments

while fully preserving the viability of the majority’s theory.”); Zamora v. Elite Logistics, Inc., 478 F.3d 1160, 1184

(10th Cir. 2007) (en banc) (Gorsuch, J., concurring) (“Addressing such a novel legal question for the first time en banc

and on our own motion—without the benefit of detailed briefing from the litigants affected by our decision, a panel

decision on point, or prior opinions from our sister courts—runs the risk of an improvident or ill-advised result given

our dependence as an Article III court on the traditions of the adversarial process for sharpening, developing, and

testing the issues for our decision.”).

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nominee has occasionally questioned precedent that he viewed as inconsistent with the rule of

law,115 his opinions at times evidence concern about judges “reshap[ing] the law as they wish it to

be” by failing to “attach power to precedent.”116

Finally, perhaps the best indication of Judge Gorsuch’s approach to judging is provided by

looking at how the Supreme Court has evaluated his work, a topic further detailed in Table 3. Of

the approximately 180 published majority opinions authored by the nominee, only one has been

reviewed in a formal opinion by the Supreme Court,117 wherein the Court ultimately affirmed the

Tenth Circuit decision by a 5-4 vote.118 Five additional opinions that Judge Gorsuch joined have

been the subject of a formal opinion by the Supreme Court. Of these five opinions, four were

affirmed by the High Court.119 One opinion that Judge Gorsuch joined, Direct Marketing Ass’n v.

Brohl, was reversed by the Court in a substantive opinion.120 As a result, Judge Gorsuch has an

arguably high affirmance rate given that the Supreme Court in recent years has reversed the lower

courts in roughly seventy percent of all cases it heard.121

115

See, e.g., Gutierrez-Brizuela v. Lynch, 834 F.3d 1142, 1157 (10th Cir. 2016) (Gorsuch, J., concurring) (questioning

the validity of Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984)); Direct Mktg.

Ass’n v. Brohl, 814 F.3d 1129, 1151 (10th Cir. 2016) (Gorsuch, J., concurring) (arguing that the reasoning of Quill

Corp. v. North Dakota, 504 U.S. 298 (1992), may be “wash[ed] away with the tides of time.”); United States v. GamesPerez, 667 F.3d 1136, 1142–46 (10th Cir. 2012) (contending that United States v. Capps, 77 F.3d 350 (10th Cir. 1996),

is impossible to square with the plain language of the statutes Capps interpreted).

116

See Direct Mktg. Ass’n, 814 F.3d at 1147 (Gorsuch, J., concurring); see also Games-Perez, 695 F.3d at 1124

(Gorsuch, J., dissenting from denial of rehearing en banc) (arguing that “stare decisis and precedential considerations

are most serious ones” and that the en banc process should be limited to “correct grave errors” of law); Green v.

Haskell Cty. Bd. of Comm’rs, 574 F.3d 1235, 1249 (10th Cir. 2009) (Gorsuch, J., dissenting from denial of rehearing

en banc) (“But the most elemental dictate of legal reasoning always has been and remains: like cases should be treated

alike.”).

117

See Huang & Narechania, supra note 30, at 1756 n.129 (“Court observers routinely use reversal rates only among

published opinions to measure the quality of a particular court.”).

118

See Dolan v. United States, 560 U.S. 605 (2010) (affirming United States v. Dolan, 571 F.3d 1022 (10th Cir. 2009)

(Gorsuch, J.)). For a discussion of Dolan, see discussion infra in Criminal Law and Procedure. None of the six

colleagues who served on active status during the entirety of Judge Gorsuch’s tenure on the Tenth Circuit escaped

having the Supreme Court review an opinion they wrote. Two judges—Judge Paul Kelly, Jr. and Judge Carlos

Lucero—have similar records to Judge Gorsuch on review by the Supreme Court in that the Court affirmed the lower

court’s written opinion. See Marx v. Gen. Revenue Corp., 668 F.3d 1174 (10th Cir. 2011) (Kelly, J.), aff’d, --- U.S. ---,

133 S. Ct. 1166 (2013); Ramah Navajo Chapter v. Salazar, 644 F.3d 1054 (10th Cir. 2011) (Lucero, J.), aff’d, 567 U.S.

182 (2012). The infrequency of review at the Supreme Court has been one metric used in gauging the “quality” of

lower court judges. See William M. Landes, Lawrence Lessig & Michael E. Solimine, Judicial Influence: A Citation

Analysis of Federal Courts of Appeals Judges, 27 J. LEGAL STUD. 271, 325–26 (1998) (hypothesizing that the Supreme

Court “rarely takes cases” from certain “top-ranked” federal appellate judges because these judges “get things ‘right’”);

Frank B. Cross & Stefanie Lindquist, Judging the Judges, 58 DUKE L.J. 1383, 1405 (2009) (“[The] Supreme Court

selectively reviews the most important decisions rendered by circuit courts, making it reasonable to use these important

decisions as a metric . . . . [T]o the degree that evaluation of circuit court judges is employed as a standard for Supreme

Court appointments, it seems appropriate to consider the fate of their decisions at the Supreme Court level.”); but see

id. at 1405 (noting that the rate of Supreme Court review may not fully gauge the work of a federal appellate court as

“[m]any incorrect circuit court rulings may go unexamined by the Supreme Court, which is not a court of ‘error

correction’”).

119

See infra Table 3, Majority Opinions of the Supreme Court Reviewing Cases in Which Judge Gorsuch Wrote or

Joined an Opinion.

120

735 F.3d 904 (10th Cir. 2013), rev’d, --- U.S. ---, 135 S. Ct. 1124 (2015). In Direct Marketing Ass’n, the Court

rejected the Tenth Circuit’s conclusion that the Tax Injunction Act barred a suit regarding a Colorado tax reporting law.

135 S. Ct. at 1127.

121

See Stat Pack Archive, SCOTUSBLOG, http://www.scotusblog.com/reference/stat-pack/ (last visited Mar. 5, 2017)

(indicating reversal rates of 67% for the October 2015 Term; 72% for the October 2014 Term; 73% for the October

2013 Term; 72% for the October 2012 Term; 63% for the October 2011 Term; and 72% for the October 2010 Term).

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Table 3. Majority Opinions of the Supreme Court Reviewing Cases in Which Judge

Gorsuch Wrote or Joined an Opinion

Opinions Listed in Reverse Chronological Order

10th Cir. Case

Relevant 10th Cir. Holding

Gorsuch’s Role

S. Ct. Decision

S. Ct. Vote

Warner v. Gross,

776 F.3d 721 (10th

Cir. 2015)

Use of the drug midazolam in

executions by lethal injection

was unlikely to violate the

Eighth Amendment’s

prohibition against cruel and

unusual punishment.

Joined majority

opinion

Affirmed, Glossip v.

Gross, --- U.S. ---,

135 S. Ct. 2726

(2015)

5-4

Direct Mktg. Ass’n v.

Brohl, 735 F.3d 904

(10th Cir. 2013)

The Tax Injunction Act bars a

suit in federal court seeking to

enjoin enforcement of a state

law requiring online retailers

to report sales and use tax

information to customers and

the state’s revenue

department.

Joined majority

opinion

Reversed, Direct

Mktg. Ass’n v. Brohl,

--- U.S. ---, 135 S. Ct.

1124 (2015)

9-0

Hobby Lobby Stores,

Inc. v. Sebelius, 723

F.3d 1114 (10th Cir.

2013) (en banc)

The Religious Freedom

Restoration Act of 1993 likely

prohibits the federal

government from requiring

closely held corporations that

hold religious objections to

certain contraceptive services

to provide coverage of those

services in employee health

plans.

Joined majority

and plurality

opinions

Affirmed, Burwell v.

Hobby Lobby Stores,

--- U.S. ---, 134 S. Ct.

2751 (2014)

5-4

United States v.

Loughrin, 710 F.3d

1111 (10th Cir.

2013)

The government does not

need to prove that a

defendant intended to defraud

a bank to secure a conviction

under a provision of the

federal bank fraud statute.

Joined majority

opinion

Affirmed, Loughrin

v. United States, --U.S. ---, 134 S. Ct.

2384 (2014)

9-0

Tarrant Reg’l Water

Dist. v. Herrmann,

656 F.3d 1222 (10th

Cir. 2011)

Oklahoma may restrict Texas

water users’ access to water

in the Red River basin because

an interstate water compact

does not grant one state a

right to take water located in

another state.

Joined majority

opinion

Affirmed, Tarrant

Reg’l Water Dist. v.

Herrmann, --- U.S.

---, 133 S. Ct. 2120

(2013)

9-0

United States v.

Dolan, 571 F.3d

1022 (10th Cir.

2009)

A sentencing court retains the

power to order a convicted

criminal to pay mandatory

restitution even though it

missed a statutory deadline.

Authored

majority opinion

Affirmed, Dolan v.

United States, 560

U.S. 605 (2010)

5-4

Source: Congressional Research Service, based on various sources cited in Table 3.

Notes: This table shows those cases in which opinions authored or joined by Judge Gorsuch have been

substantively reviewed by the Supreme Court. It includes any panel or en banc rulings written or joined by Judge

Gorsuch that were, at least in part, reviewed in a written opinion by the Supreme Court. It does not include

(1) any short order by the Supreme Court, such as a grant or denial of a writ of certiorari or an order summarily

and simultaneously granting certiorari, vacating the ruling, and remanding the case for further proceedings;

(2) any temporary order of the Court, such as a stay of an order of the Tenth Circuit; (3) any summary

affirmance of an opinion authored or joined by Judge Gorsuch; or (4) any of Judge Gorsuch’s votes on petitions

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for rehearing en banc. As a result, Judge Gorsuch’s opinion in United States v. Sanchez, 252 F. App’x 900 (10th

Cir. 2007), and vote in support of the majority opinion in United States v. Trotter, 483 F.3d 694 (10th Cir. 2007),

are not included in this table, because the Supreme Court issued a short order in these cases granting certiorari,

vacating the ruling, and remanding the case for further proceedings in light of an intervening Supreme Court

decision. This list also omits his votes in support of the opinions dissenting from the denial of rehearing en banc

in Kerr v. Hickenlooper, 759 F.3d 1186 (10th Cir. 2014), Pauly v. White, 817 F.3d 715 (10th Cir. 2016), Summum v.

Pleasant Grove City, 499 F.3d 1170 (10th Cir. 2007), and United States v. Nichols, 784 F.3d 666 (10th Cir. 2015).

The table also does not include cases in which the Supreme Court has functionally negated the judge’s reasoning

in a particular case by subsequent decision. Compare Williams v. Jones, 583 F.3d 1254, 1256–60 (10th Cir. 2009)

(Gorsuch, J., dissenting from denial of rehearing en banc) (arguing that neither the Sixth Amendment nor any

other federal law allows a defendant to claim ineffective assistance of counsel based on poor advice regarding

plea bargaining when the defendant otherwise gets a fair trial), with Missouri v. Frye, 566 U.S. 134, 149–50 (2012)

(holding that the Sixth Amendment right to adequate assistance of counsel extends to the negotiation and

consideration of plea offers that lapse), and Lafler v. Cooper, 566 U.S. 156, 174 (2012) (same with respect to

offers that are rejected).

Statutory Interpretation

As several commentators have noted, Judge Gorsuch can be seen to employ the same general

approach to questions of statutory interpretation that Justice Scalia did.122 This approach—known

as textualism—looks to the statutory text, context, and structure when construing laws, rather than

to extrinsic evidence of the intent or purpose of the Congress that enacted the statute.123

Textualism’s focus on the wording of the statute is widely shared among contemporary jurists and

commentators, but its rejection of extrinsic sources of meaning has been the subject of debate, as

have textualist views about judges’ proper role in establishing the meaning of statutory text.124

With Judge Gorsuch in particular, attention to the statutory text has often centered upon questions

of grammar,125 with the nominee once going so far as to diagram part of a sentence in a written

opinion.126 With specific regard to interpreting criminal statutes, Judge Gorsuch can be seen to

resemble Justice Scalia in invoking the “rule of lenity” when construing language that is seen to

be ambiguous in favor of criminal defendants.127 On the other hand, the nominee’s recently

122

See, e.g., Aaron Blake, Neil Gorsuch, Antonin Scalia and Originalism, Explained, WASH. POST (Feb. 1, 2017),

https://www.washingtonpost.com/news/the-fix/wp/2017/02/01/neil-gorsuch-antonin-scalia-and-originalism-explained;

Debra Cassens Weiss, Trump Nominates Judge Neil Gorsuch to the Supreme Court, ABA J. (Jan. 31, 2017),

https://www.washingtonpost.com/news/the-fix/wp/2017/02/01/neil-gorsuch-antonin-scalia-and-originalism-explained/.

123

See, e.g., William N. Eskridge, Jr., The New Textualism, 37 UCLA L. REV. 621, 623–24 (1990); Daniel A. Farber &

Philip F. Frickey, Legislative Intent and Public Choice, 74 VA. L. REV. 423, 455 (1988).

124

Cf. William N. Eskridge, Jr., The New Textualism and Normative Canons, 113 COLUM. L. REV. 531, 532 (2013)

(“[V]irtually all theorists and judges are ‘textualists,’ in the sense that all consider the text the starting point for

statutory interpretation and follow statutory plain meaning if the text is clear . . . . [V]irtually all theorists and judges

are also ‘purposivists,’ in the sense that all believe that statutory interpretation ought to advance statutory purposes, so

long as such interpretations do not impose on words a meaning they will not bear. And virtually all theorists and judges

insist the statutory context is important in discerning the meaning of statutory texts. So what has the debate been all

about? Doctrinally, the big debate has been whether interpretative context can include internal ‘legislative history’

preceding a statute’s enactment into law . . . . Theoretically, the big debate has focused on what the role of judges

should be.”). For more on the latter, see discussion supra in Role of the Judiciary.

125

See, e.g., United States v. Rentz, 777 F.3d 1105, 1110 (10th Cir. 2015) (en banc) (“[T]his reading of the statute—

like most good ones—flows from plain old grade school grammar . . . .”). For further discussion of this aspect of Judge

Gorsuch’s jurisprudence, see infra notes 134–47 and accompanying text.

126

See id.; see infra Figure 1, “Diagram from United States v. Rentz.”

127

See, e.g., United States v. Smith, 756 F.3d 1179, 1191 (10th Cir. 2014) (“The rule of lenity dictates that any doubts

at the end of a thorough statutory investigation must be resolved for the defendant, any tie must go to the citizen, not

the state. In our legal order it is not the job of independent courts to bend ambiguous statutory subsections in

procrustean ways to fit the prosecutor’s bill.”); United States v. Manatau, 647 F.3d 1048, 1055 (10th Cir. 2011)

(continued...)

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expressed concerns about “Chevron deference”128—judicial deference to the reasonable

interpretations by executive branch agencies of ambiguous or silent statutes129–distinguish him

from Justice Scalia in certain ways.130 These last two facets of Judge Gorsuch’s jurisprudence—

that is, his approaches to the rule of lenity and Chevron deference—are discussed in more detail

later in this report.131

Consistent with a textualist approach to statutory interpretation, Judge Gorsuch in a number of his

written opinions has identified what he views as the “plain text”132 or “plain language”133 of the

statute in question (although his colleagues on the bench sometimes took different views as to

whether this language was, in fact, so clear134). The exact words of the statute often formed the

starting point for Judge Gorsuch’s discussion of questions of interpretation,135 and he has

generally accorded such words their customary meaning,136 as reflected by their dictionary

definitions.137 Perhaps the most notable aspect of the nominee’s discussion of statutory text,

though, has been his focus on the grammar of legislative language138 and, in particular, the

(...continued)

(similar). See also In re Woolsey, 696 F.3d 1266, 1277 (10th Cir. 2012) (noting that, when a statute possesses both

criminal and civil applications, “a narrowing interpretation in a criminal case driven by the rule of lenity must apply

equally to civil litigants to whom lenity would not ordinarily extend”).

128

See Gutierrez-Brizuela v. Lynch, 834 F.3d 1142, 1149-58 (2016) (Gorsuch, J., concurring).

129

See Chevron U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 843–44 (1984) (“If . . . the court determines

Congress has not directly addressed the precise question at issue, the court does not simply impose its own construction

on the statute, as would be necessary in the absence of an administrative interpretation. Rather, if the statute is silent or

ambiguous with respect to the specific issue, the question for the court is whether the agency’s answer is based on a

permissible construction of the statute.”).

130

See generally CRS Scalia Report, supra note 8, at 8–9; see also discussion infra in Administrative Law.

131

See discussions infra in Criminal Law and Procedure and Administrative Law, respectively.

132

See Lexington Ins. Co. v. Precision Drilling Co., L.P., 830 F.3d 1219, 1221 (10th Cir. 2016); A.F. v. Española Pub.

Schs., 801 F.3d 1245, 1248 (10th Cir. 2015); Smith, 756 F.3d at 1193; Hobby Lobby Stores, Inc. v. Sebelius, 723 F.3d

1114, 1155 (10th Cir. 2013) (en banc); Iliev v. Holder, 613 F.3d 1019, 1025 (10th Cir. 2010).

133

See, e.g., Lexington Ins. Co., 830 F.3d at 1221, 1224; El Encanto, Inc. v. Hatch Chile Co., 825 F.3d 1161, 1164

(10th Cir. 2016); United States v. Makkar, 810 F.3d 1139, 1146 (10th Cir. 2015); A.F., 801 F.3d at 1249-50.

134

See, e.g., A.F., 801 F.3d at 1255 (Briscoe, C.J., dissenting) (“The majority in this case concludes that the abovehighlighted language of [20 U.S.C.] § 1415 (l) unambiguously requires a litigant, such as A.F., to ‘qualify under

subsection [1415(i)] as a party ‘aggrieved by the findings and decision’ of administrative trial and appellate

authorities.’ . . . I submit, however, that the highlighted language is ‘capable of being understood’ in another, and

indeed more reasonable, ‘way[].’”); United States v. Rentz, 777 F.3d 1105, 1115 (10th Cir. 2015) (Hartz, J.,

concurring) (taking the view that “the words of 18 U.S.C. § 924(c)(1)(A) in isolation . . . lend themselves most readily

to the government’s interpretation,” not that of the panel majority, but the majority’s interpretation is to be preferred on

lenity grounds); id. at 1131 (Kelly, J., dissenting) (rejecting the majority interpretation).

135

See, e.g., Cook v. Rockwell Int’l Corp., 790 F.3d 1088, 1094 (10th Cir. 2015) (“Start with the text.”); Smith, 756

F.3d at 1181 (“We begin with 18 U.S.C. § 3661.”); Elwell v. Okla. ex rel. Bd. of Regents of the Univ. of Okla., 693

F.3d 1303, 1306 (10th Cir. 2012) (“[W]e begin as always with the language of the statute.”).

136

Cf. El Encanto, Inc., 825 F.3d at 1174 (“[S]urely our job when interpreting statutes is to read them as even an

ordinary citizen might, not to lay spring traps for the unwary and force lay persons to become experts in the vestigial

esoterica of every statute and federal rule.”).

137

See, e.g., Elwell, 693 F.3d at 1306–07; Prost v. Anderson, 636 F.3d 578, 584 (10th Cir. 2011); Regional Air, Inc. v.

Canal Ins. Co., 639 F.3d 1229, 1237–38 (10th Cir. 2011).

138

See, e.g., Lexington Ins. Co., 830 F.3d at 1223; United States v. Krueger, 809 F.3d 1109, 1119 (10th Cir. 2015)

(Gorsuch, J., concurring); Elwell, 693 F.3d at 1306; United States v. Rosales-Garcia, 667 F.3d 1348, 1356 (10th Cir.

2012) (Gorsuch, J., dissenting); United States v. Games-Perez, 667 F.3d 1136, 1144 (10th Cir. 2012) (Gorsuch, J.,

concurring); Payless Shoesource, Inc. v. Travelers Cos., Inc., 585 F.3d 1366, 1369 (10th Cir. 2009); United States v.

Hinckley, 550 F.3d 926, 941 (10th Cir. 2008) (Gorsuch, J., concurring).

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various parts of speech used in the statutory text.139 For instance, as noted above, in his 2015

opinion for a majority of the en banc Tenth Circuit in United States v. Rentz,140 Judge Gorsuch

diagrammed a segment of a sentence in a criminal statute to help address the underlying

interpretative question, as illustrated in Figure 1 below. The specific interpretative question in

Rentz was whether multiple charges may be brought under Section 924(c) of Title 18 of the

United States Code —a statute that prescribes penalties for certain crimes involving firearms141—

against a defendant who fired a single shot that hit two separate victims.142

Figure 1. Diagram from United States v. Rentz

Source: Screenshot taken from United States v. Rentz, 777 F.3d 1105

(10th Cir. 2015) (en banc), https://www.ca10.uscourts.gov/opinions/12/124169.pdf.

According to Judge Gorsuch’s opinion for the majority, this diagram helped clarify that the total

number of charges lodged against a criminal defendant under the statute should never “exceed the

number of uses, carries, or possessions” because:

Just as you can’t throw more touchdowns during the fourth quarter than the total number

of times you have thrown a touchdown, you cannot use a firearm during and in relation

to crimes of violence more than the total number of times you have used a firearm.143

139

See, e.g., Krueger, 809 F.3d at 1119 (“[T]he grammatical structure of the sentence indicates that magistrate judges

shall have those powers specified by rule or other law (e.g., Rule 41), but those powers are effective only in certain

specified geographic areas — and, as we’ve seen, none of those areas is implicated here.”); Rosales-Garcia, 667 F.3d

at 1355 (Gorsuch, J., dissenting) (“In the richness of the English language, few things can create as much mischief as

piling prepositional phrase upon prepositional phrase.”); Hinckley, 550 F.3d at 941 (Gorsuch, J., concurring) (“The

first, and most narrow, such feature lies in the grammar of subsection (d) itself and the lack of clarity about what the

phrase ‘who are unable to comply with subsection (b) of this section’ actually modifies.”).

140

United States v. Rentz, 777 F.3d 1105 (10th Cir. 2015) (en banc).

141

See 18 U.S.C. § 924(c)(1)(A) (“Except to the extent that a greater minimum sentence is otherwise provided by this

subsection or by any other provision of law, any person who, during and in relation to any crime of violence or drug

trafficking crime (including a crime of violence or drug trafficking crime that provides for an enhanced punishment if

committed by the use of a deadly or dangerous weapon or device) for which the person may be prosecuted in a court of

the United States, uses or carries a firearm, or who, in furtherance of any such crime, possesses a firearm, shall, in

addition to the punishment provided for such crime of violence or drug trafficking crime (i) be sentenced to a term of

imprisonment of not less than 5 years; (ii) if the firearm is brandished, be sentenced to a term of imprisonment of not

less than 7 years; and (iii) if the firearm is discharged, be sentenced to a term of imprisonment of not less than 10

years.”).

142

Rentz, 777 F.3d at 1110.

143

Id.

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Previously, in dissenting from the denial of en banc review in United States v. Games-Perez,

Judge Gorsuch had expressed similar concerns about reading the mens rea element of a criminal

statute—or the state of mind required for guilt—as “leapfrogging over the first statutorily

specified element and touching down only at the second listed element.”144 According to Judge

Gorsuch, such a reading “defies grammatical gravity and linguistic logic.”145

Judge Gorsuch’s written opinions have also relied upon other interpretative practices

characteristic of textualist approaches to statutory interpretation, including resort to the “larger

statutory context,”146 express statements of congressional purpose,147 and the history of the

statute.148 The nominee has also invoked a number of canons—or general principles—of statutory

interpretation when construing text that is seen to be ambiguous.149 In so doing, Judge Gorsuch

has generally cited to and applied specific interpretative canons without expressly involving

himself in the broader debates about the merits of canons-based approaches to statutory

interpretation, prompted by Justice Scalia’s 2012 book, Reading Law: The Interpretation of Legal

Texts.150

However, in his 2016 opinion for a three-judge panel of the Tenth Circuit in Lexington Insurance

Co. v. Precision Drilling Co., L.P., Judge Gorsuch contrasted canons that he viewed as “finely

honed and consistent with the judicial function,” such as the presumption that statutes do not

apply outside the United States unless Congress clearly indicates it intends the statute to apply

extraterritorially, with the so called “absurdity canon.”151 This canon is generally said to allow

judges to “override even unambiguous statutory texts . . . in order to avoid putatively absurd

consequences in their application.”152 However, Judge Gorsuch expressed concern that broad

144

United States v. Games-Perez, 695 F.3d 1104, 1117 (10th Cir. 2012) (Gorsuch, J., dissenting for the denial of en

banc review [need to check consistency throughout]).

145

Id.

146

Prost v. Anderson, 636 F.3d 578, 587 (10th Cir. 2011). See also Cook v. Rockwell Int’l Corp., 790 F.3d 1088,

1095–96 (10th Cir. 2015) (“surrounding textual features” and “larger statutory structure”); Elwell v. Okla. ex rel. Bd. of

Regents of the Univ. of Okla., 693 F.3d 1303, 1309 (10th Cir. 2012) (“larger statutory structure”); In re Dawes, 652

F.3d 1236, 1239 (10th Cir. 2011) (“larger statutory structure”).

147

See, e.g., In re Dawes, 652 F.3d at 1239; United States v. Hinckley, 550 F.3d 926, 932 (10th Cir. 2008) (Gorsuch, J.,

concurring).

148

See, e.g., Cook, 790 F.3d at 1096; Almond v. Unified Sch. Dist. #501, 665 F.3d 1174, 1182 (10th Cir. 2011); Prost,

636 F.3d at 587.

149

One such canon is the rule against surplusage, or the rule that statutory language should be construed, insofar as

possible, in such a way that “effect is given to all its provisions, so that no part will be inoperative or superfluous, void

or insignificant.” Corley v. United States, 556 U.S. 303, 314 (2009) (quoting Hibbs v. Winn, 542 U.S. 88, 101 (2004)).

See, e.g., Cook, 790 F.3d at 1096; Almond, 665 F.3d at 1182; Prost, 636 F.3d at 587. Another is the Russello canon, or

the rule that, where Congress has included particular language in one section of a statute, but omitted this language in

another section, it is generally presumed to have acted intentionally, Russello v. United States, 464 U.S. 16 (1983). See,

e.g., United States v. Smith, 756 F.3d 1179, 1187 (10th Cir. 2014); Perez-Carrera v. Stancil, 616 F. App’x. 371, 372

(10th Cir. 2015). Yet another is the rule that expressio unius est exclusio alterius (i.e., the express mention of one or

more items of a particular class is taken to mean that other items of that same class are excluded). See, e.g., Elwell, 693

F.3d at 1309–10; Regional Air, Inc. v. Canal Ins. Co., 639 F.3d 1229, 1238 (10th Cir. 2011).

150

Compare ANTONIN SCALIA & BRYAN A. GARNER, READING LAW: THE INTERPRETATION OF LEGAL TEXTS 49–239,

241–339, 341–410 (2012) (setting forth thirty-seven principles generally applicable to legal texts; twenty principles

applicable “specifically to governmental prescriptions,” such as statutes; and thirteen fallacies), with Eskridge, supra

note 124, at 536 (noting “three big problems” with the canon-based approach put forth in Justice Scalia’s 2011 book,

Reading Law, and suggesting that, because of these problems, the “actual effect of the Scalia-Garner canons would not

be greater judicial restraint but instead a relatively less constrained and somewhat more antidemocratic textualism”).

151

830 F.3d 1219, 1220 (10th Cir. 2016).

152

Id. at 1220.

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application of this canon could enable judges to disregard clear statutory text in favor of the

jurists’ perceived view of Congress’s purpose in enacting the statute.153 Judge Gorsuch’s

Lexington Insurance opinion can be seen to reflect broader concerns about interpretations of

statutory text based on extrinsic evidence of congressional purpose common to textualist

approaches, as discussed below.154 However, the nominee’s discussion of these concerns in

Lexington Insurance is arguably notable for its relative length, particularly given that the sole

legal authority cited by Judge Gorsuch as supporting purpose-based applications of the absurdity

doctrine is an 1892 Supreme Court decision that has not enjoyed particular favor with the Court

in more recent years.155 The two other judges on the panel would not have reached the questions

regarding the absurdity doctrine, concluding instead that the plaintiff had waived the argument.156

Furthermore, consistent with a textualist approach, Judge Gorsuch has made limited resort to

legislative history materials. Unlike Justice Scalia, who generally viewed the use of legislative

history materials as illegitimate even in support of text-based arguments,157 Judge Gorsuch has

cited legislative history materials in certain cases.158 However, such citations may be based, in

part, on his view that Supreme Court precedent directed lower court judges to consider legislative

history materials in those instances.159 He has elsewhere expressed concerns about the use of

153

Id. Note, however, that Judge Gorsuch contrasts applications of the absurdity canon based on “scrivener’s error,” or

manifest errors in the statutory text, such as misspellings, with applications based on jurists’ views of the underlying

purpose of the statute. Id. at 1223.

154

In particular, in Lexington Insurance, Judge Gorsuch expressed concern that applications of the absurdity doctrine

based on jurists’ views of congressional purpose would generally require that judges engage in the “doubtful business

of guessing at hidden legislative intentions” in order to arrive at the view that the legislature could not have intended

particular consequences. Id. at 1220 (“Any attempt to use the absurdity doctrine to overrule plain statutory text would

invite all the well-documented problems associated with trying to reconstruct credibly the intentions of hundreds of

individual legislators.”). He also contended that application of the absurdity canon based on extrinsic evidence of

congressional purpose “risk[s] offending the separation of powers” by purporting to grant courts the power to disregard

potential interpretations of statutes because of concerns about the implausibility of their consequences, and “threatens

due process” by “foisting” upon persons textual interpretations they would have had “difficulty imagining when

arranging their affairs.” Id.

155

Id. at 1222 (citing Church of the Holy Trinity v. United States, 143 U.S. 457 (1892); John F. Manning, The

Absurdity Doctrine, 116 HARV. L. REV. 2387, 2390–91 (2003)). In Holy Trinity, the High Court unanimously held that

provisions in the Alien Contract Labor Act that made it unlawful “for any person, company, partnership, or

corporation, in any manner whatsoever, to . . . in any way assist . . . the importation or migration of any alien or aliens

. . . into the United States under contract or agreement . . . to perform labor or service of any kind in the United States”

did not apply to an Episcopal church that hired a minister from England. In so doing, the Court noted that the church’s

action fell within the letter of the statute, but nonetheless concluded that “a thing may be within the letter of the statute

and yet not within the statute because not within its spirit nor within the intention of its makers.” Id. at 459. However,

the Court’s approach in Holy Trinity is generally not seen to be widely favored at present. See, e.g., Carol Chomsky,

The Story of Holy Trinity Church v. United States: Spirit and History in Statutory Interpretation, in STATUTORY

INTERPRETATION STORIES 3, 5–6 (William N. Eskridge, Jr., Philip P. Frickey, & Elizabeth Garett, eds., 2011) (noting

concerns about the Holy Trinity decision voiced by Chief Justice Rehnquist and Justices Scalia and Kennedy, among

others).

156

Lexington Ins., 830 F.3d at 1224–25 (Bacharach, J., concurring, with McHugh, J., joining).

157

See, e.g., Conroy v. Aniskoff, 507 U.S. 511, 518–19 (1993) (Scalia, J., concurring) (objecting to the use of

legislative history materials to confirm text-based interpretations of statutes on the grounds that such use provides a

“false and disruptive lesson in the law” by fostering the belief that “an ‘unambiguous and unequivocal’ statute can

never be dispositive”). Justice Scalia did, however, express a willingness to consider legislative history materials to

determine the contexts in which particular words had been used when ascertaining their ordinary meaning. See, e.g.,

SCALIA & GARNER, supra note 150, at 388.

158

See, e.g., Caplinger v. Medtronic, Inc., 784 F.3d 1335, 1346 (10th Cir. 2015) (noting legislative history materials in

support of a text-based interpretation); Almond v. Unified Sch. Dist. #501, 665 F.3d 1174, 1183 (10th Cir. 2011)

(similar); United States v. Dolan, 571 F.3d 1022, 1025 (10th Cir. 2009) (similar).

159

See United States v. Hinckley, 550 F.3d 926, 947 (10th Cir. 2008) (Gorsuch, J., concurring) (“Though the Supreme

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Judge Neil M. Gorsuch: His Jurisprudence and Potential Impact on the Supreme Court

legislative history materials similar to those voiced by Justice Scalia.160 In particular, Judge

Gorsuch has expressed skepticism about a jurist’s ability to discern a single legislative “intent”

beyond that embodied in the express terms of the statute.161 Consistent with his concerns about

results-oriented judging, the nominee has noted the risks of judges cherry picking among

legislative history materials to support their preferred interpretation of the statute being

construed.162 He has also expressed, as Justice Scalia did,163 constitutional concerns with the use

of legislative history materials, in that such materials are not subject to the same bicameralism

and presentment requirements as statutes because they are not passed by both chambers of

Congress and signed by the President.164

Judge Gorsuch has similarly expressed concerns, akin to those voiced by Justice Scalia,165 about

invocations of alleged congressional or statutory purposes that are untethered from or contrary to

the express statutory text. Some of these concerns are seemingly practical ones, grounded in the

difficulty of determining which of various possible purposes that could be attributed to a

particular statutory text embody the shared intent of a legislature made up of dozens or even

hundreds of members.166 Other concerns appear to be grounded in the nominee’s views about the

respective roles of the judicial and legislative branches, as previously noted.167 Much like Justice

Scalia, Judge Gorsuch has opined that courts should interpret the law, not create it, as courts

could be said to do if they were to adopt a particular construction of a statute based on the court’s

abstract view of the statute’s purpose in lieu of one based on the statute’s express text.168 As a

result, if Judge Gorsuch were to serve on the Supreme Court, his views on statutory interpretation

would largely appear to align with those of the Justice he would replace.

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Court has recognized that legislative history is ‘often murky, ambiguous, and contradictory,’ . . . the Court itself has

repeatedly told us to employ such history when seeking to resolve an ambiguous text.”).

160

See generally CRS Scalia Report, supra note 8, at 6.

161

See, e.g., United States v. Games-Perez, 695 F.3d 1104, 1118 (10th Cir. 2012) (Gorsuch, J., dissenting from denial

of en banc review) (noting the “difficulties of trying to say anything definitive about the intent of 535 legislators and

the executive”). See also United States v. Spaulding, 802 F.3d 1110 (10th Cir. 2015) (Gorsuch, J., dissenting)

(“[S]tatutes and rules are the product of many competing interests and compromised objectives . . . .”); United States v.

Hernandez, 655 F.3d 1193, 1197 (10th Cir. 2011) (“The legislative art is, after all, one of compromise . . . .”).

162

See, e.g., Hinckley, 550 F.3d at 947 (Gorsuch, J., concurring); Zamora, 478 F.3d at 1183 n.1 (Gorsuch, J.,

concurring).

163

See, e.g., Zedner v. United States, 547 U.S. 489, 509-10 (2006) (Scalia, J., concurring).

164

See Games-Perez, 695 F.3d at 1118 (Gorsuch, J., dissenting from denial of en banc review).

165

See generally CRS Scalia Report, supra note 8, at 6.

166

See, e.g., Lexington Ins. Co. v. Precision Drilling Co., L.P., 830 F.3d 1219, 1220–21 (10th Cir. 2016)

(characterizing “speculation about [the] legislature’s textually unexpressed intentions” as a “guessing game both sides

can almost always play” and the “task of trying to discern the textually unexpressed intentions of (or really attribute

such intentions to) a legislative body composed of scores or often hundreds of individuals” as a “notoriously doubtful

business”); Spaulding, 802 F.3d at 1133 (Gorsuch, J., dissenting) (noting that Congress could be seen to have pursued a

policy different than that suggested by the majority when it enacted the statute in question); Regional Air, Inc. v. Canal

Ins. Co., 639 F.3d 1229, 1238 (10th Cir. 2011) (similar).

167

See discussion supra in Role of the Judiciary.

168

See, e.g., Prost v. Anderson, 636 F.3d 578, 592 (10th Cir. 2011) (“We can well imagine an alternative statutory

regime that might strike the balance differently than Congress has done. But it is not our place to adopt a test that

replaces the balance Congress reached with one of our own liking.”).

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Judge Neil M. Gorsuch: His Jurisprudence and Potential Impact on the Supreme Court

Administrative Law

Administrative law cases at the Supreme Court are often contentious, resulting in divided

decisions on legal issues of national import.169 For example, last term the Supreme Court split 4-4

in United States v. Texas, a case that implicated important administrative law doctrines such as the

scope of an agency’s discretion to issue guidance documents to set regulatory policy.170 While the

Tenth Circuit’s docket does not include as many administrative law cases as other federal

courts,171 in the few cases that have come before him, Judge Gorsuch has articulated distinct

views that may signal how he would approach administrative law matters if he were elevated to

the Supreme Court.

Justiciability Issues. A central threshold issue in administrative law cases is whether a

challenged agency action is suitable for judicial review in the first place, including whether a

court has jurisdiction over the case.172 While this inquiry is often dependent on the facts of a

given case, a few trends can arguably be discerned from the various cases raising justiciability

issues in which Judge Gorsuch presided. In cases both arising in the context of a challenge to a

federal agency policy and outside of that context, the nominee sided with the majority of the

appellate panel in most cases where access to judicial relief was litigated, and he has not

demonstrated a proclivity towards a notably expansive or restrictive view of jurisdictional

issues.173 In the few judicial access cases in which Judge Gorsuch wrote a separate opinion, he

169

See, e.g., Michigan v. EPA, 576 U.S. ---, 135 S. Ct. 2699, 2706–07 (2015) (holding in a 5-4 decision that it was

unreasonable for the Environmental Protection Agency not to consider costs when initially deciding that it was

appropriate and necessary to regulate emissions from power plants under the Clean Air Act).

170

579 U.S. ---, 136 S. Ct. 2271, 2272 (2016) (per curiam) (affirming, in a 4-4, one-sentence decision, a judgment of

the Fifth Circuit that preliminarily enjoined implementation of the Obama Administration’s Deferred Action for Parents

of Americans and Lawful Permanent Residents program).

171

See discussion supra in Predicting Nominees’ Future Decisions on the Court.

172

This assessment is often informed by constitutional, prudential, and statutory considerations. See Lujan v. Defs.

Wildlife, 504 U.S. 555, 560 (1992); Bennett v. Spear, 520 U.S. 154, 162 (1997). A court may be called upon to

determine, for example, whether a petitioner has standing to bring the lawsuit, see id. at 162; whether legal or factual

developments have rendered the challenge moot, see Already, LLC v. Nike, Inc., --- U.S. ---, 133 S. Ct. 721, 726

(2013); and whether the case presents a nonjusticiable political question, see Baker v. Carr, 369 U.S. 186, 217 (1962).

Although beyond the scope of this report, another major issue might be judicial review of agency compliance with the

procedural requirements of the Administrative Procedure Act, 5 U.S.C. §§ 551 et seq. See, e.g., United States v.

Magnesium Corp. of Am., 616 F.3d 1129, 1131 (10th Cir. 2010) (holding that EPA was not required to undergo notice

and comment rulemaking when it changed its interpretation of an ambiguous regulation).

173

See, e.g., WildEarth Guardians v. EPA, 759 F.3d 1196, 1207 (10th Cir. 2014) (Hartz, J.) (Gorsuch, J., joining

opinion denying a petition for review of EPA’s Final Implementation Plan because, among other things, certain issues

were moot); Aguilar-Alvarez v. Holder, 528 F. App’x 862, 863 (10th Cir. 2013) (Holmes, J.) (Gorsuch, J., joining an

opinion dismissing a petition for review of a Board of Immigration Appeals decision because petitioner lacked

standing, and the court otherwise lacked jurisdiction to review a claim concerning abuse of prosecutorial discretion);

Muscogee (Creek) Nation Div. of Hous. v. U.S. Dep’t of Hous. & Urban Dev., 698 F.3d 1276, 1281–82 (10th Cir.

2012) (McKay, J.) (Gorsuch, J., joining an opinion concluding the district court correctly dismissed a challenge to a

regulation of the Department of Housing and Urban Development for lack of jurisdiction because the matter was

committed to the agency’s discretion); Rhodes v. Judiscak, 676 F.3d 931, 932 (10th Cir. 2011) (Lucero, J.) (Gorsuch,

J., joining an opinion dismissing a petition for habeas corpus review on mootness grounds because the petitioner was

no longer in prison); Hydro Res., Inc. v. EPA, 608 F.3d 1131, 1144 (10th Cir. 2010) (en banc) (Gorsuch, J.) (holding

that petitioners had Article III standing to challenge EPA’s determination that their land qualified as Indian Land);

Travis v. Park City Police Dep’t, 277 F. App’x 829, 832 (10th Cir. 2008) (Gorsuch, J.) (concluding the petitioner

lacked Article III standing to bring a First Amendment challenge to a city ordinance because he had not violated it and

did not intend to violate it); Wyoming v. U.S. Dep’t of Interior, 587 F.3d 1245, 1247 (10th Cir. 2009) (Gorsuch, J.)

(ruling that a challenge to a National Park Service rule was moot because the agency had promulgated a new rule);

Lewis v. Tripp, 604 F.3d 1221, 1224 (10th Cir. 2010) (Gorsuch, J.) (ruling that evidence of records being stolen from

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has tended174 to do so on the basis that the court lacked jurisdiction over the suit.175 For example,

in Wilderness Society v. Kane County, a majority of the en banc panel held that the plaintiffs

lacked prudential standing in a challenge brought against a local government entity under the

Supremacy Clause.176 Judge Gorsuch, however, wrote a concurring opinion concluding the court

lacked subject matter jurisdiction over the case in the first place.177 Similarly, in Kerr v.

Hickenlooper, a suit brought by state legislators claiming that a voter initiative violated the

Constitution’s Guarantee Clause,178 the original three-judge panel rejected arguments that the

court lacked jurisdiction over the case.179 Judge Gorsuch dissented from a subsequent denial of

rehearing en banc, arguing that the court lacked jurisdiction to hear the suit because it presented a

nonjusticiable political question.180

Statutory Review Cases. As background, under the Administrative Procedure Act (APA),181 a

reviewing court must set aside agency action that is “not in accordance with law” or that is “in

excess of statutory jurisdiction, authority, or limitations, or short of statutory right.”182 Pursuant to

the framework established by the Supreme Court in Chevron, U.S.A., Inc. v. Natural Resources

Defense Council, Inc.,183 a court will generally defer to an agency’s interpretation of a statute that

is seen to be silent or ambiguous on a particular issue.184 In National Cable &

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petitioner’s office was sufficient to establish Article III standing).

174

Judge Gorsuch wrote separately in Hobby Lobby Stores, Inc. v. Sebelius to argue that the plaintiffs, whom the

majority concluded had standing as closely held business organizations to challenge agency regulations, 723 F.3d 1114

(10th Cir. 2013) (en banc), also had standing in their individual capacities to sue. Id. at 1152 (Gorsuch, J., concurring).

For a detailed discussion of the merits of this case, see discussion infra in Freedom of Religion.

175

See, e.g., Kerr v. Hickenlooper, 759 F.3d 1186, 1193 (10th Cir. 2014) (Gorsuch, J., dissenting from denial of

rehearing en banc) (arguing that the case should have been dismissed on political question grounds); N.M. OffHighway Vehicle All. v. U.S. Forest Serv., 540 F. App’x 877 (10th Cir. 2013) ( Gorsuch, J., dissenting) (arguing that

the plaintiffs had no right of intervention because an existing party already represents their interests); Wilderness Soc’y

v. Kane Cty., 632 F.3d 1162, 1174 (10th Cir. 2011) (“Most of this case is moot—and has been for years. What little of

this lawsuit that remains fails to implicate our jurisdiction because even a favorable decision won’t redress the

[plaintiff’s] claimed injury.”); Hanson v. Wyatt, 552 F.3d 1148, 1164 (10th Cir. 2008) (Gorsuch, J., concurring in the

judgment) (declining to reach the merits, as the majority did, on the grounds that the case was nonjusticiable). Insofar

as Judge Gorsuch’s separate opinions suggest a trend against finding matters justiciable, his writings might be said to

cohere with the views of Justice Scalia, who often wrote opinions that narrowed access to the courts for parties seeking

to challenge administrative action. See CRS Scalia Report, supra note 8, at 9–10.

176

632 F.3d 1162, 1168 n.1 (10th Cir. 2011) (“Although prudential standing is not a jurisdictional limitation and may

be waived, here it has been raised.”).

177

Id. at 1174–80 (Gorsuch, J. concurring in the judgment).

178

U.S. CONST. art. IV, § 4, cl. 1.

179

744 F.3d 1156, 1161 (10th Cir. 2014), cert. granted, judgment vacated, --- U.S. ---, 135 S. Ct. 2927 (2015). The

Supreme Court later vacated the majority panel’s decision and directed the court to reconsider the case in light of its

decision in Arizona State Legislature v. Arizona Independent Redistricting Commission, --- U.S. ---, 135 S. Ct. 2652

(2015). The Tenth Circuit then reheard the case in light of this opinion and dismissed it for lack of Article III standing.

Kerr v. Hickenlooper, 824 F.3d 1207, 1211 (10th Cir. 2016).

180

Kerr, 759 F.3d at 1193 (Gorsuch, J., dissenting from denial of rehearing en banc).

181

5 U.S.C. §§ 551 et seq.

182

Id. § 706(2)(A), (C).

183

467 U.S. 837 (1984).

184

Under Chevron, courts engage in a two-step analysis of an agency’s interpretation of a statute. At the first step, the

court must generally determine whether Congress “has directly spoken to the precise question at issue.” Id. at 842. If

so, a court is required to give effect to Congress’s intent, notwithstanding a contrary agency interpretation. Id. at 842–

43. However, if a statute is silent or ambiguous on the matter, the second step of the Chevron analysis requires a court

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Judge Neil M. Gorsuch: His Jurisprudence and Potential Impact on the Supreme Court

Telecommunications Ass’n v. Brand X Internet Services, the Supreme Court interpreted Chevron

to extend to an agency’s interpretation of a silent or ambiguous statute even if a court had

previously interpreted the statute in question.185 As a statistical matter, under the Chevron

doctrine, courts have often deferred to an agency’s interpretation of its own statutory authority.186

In engaging in substantive review of agency actions, Judge Gorsuch has questioned the size and

power of the modern administrative state, declaring that the number of regulations issued by

agencies has “grown so exuberantly it’s hard to keep up. . . . And no one seems sure how many

more hundreds of thousands (or maybe millions) of pages of less formal [guidance] might be

found floating around these days.”187 Given the breadth and scope of federal agency power, the

nominee has also raised “questions like whether and how people can be fairly expected to keep

pace with and conform their conduct to all this churning and changing ‘law.’”188 Reflecting these

concerns, Judge Gorsuch has critiqued Chevron and Brand X and has taken a narrow view of the

situations in which Chevron deference is due.189 In perhaps the most discussed of Judge

Gorsuch’s opinions,190 Gutierrez-Brizuela v. Lynch, after writing for a unanimous panel that

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to defer to an agency’s reasonable statutory interpretation. Id. at 843. The Court has explained that Chevron deference

does not apply to every agency’s statutory interpretation; in determining whether Chevron deference is appropriate,

courts must examine whether Congress delegated to the agency authority to “speak with the force of law,” and the

relevant interpretation was “promulgated in the exercise of that authority.” United States v. Mead Corp., 533 U.S. 218,

226–27, 229 (2001). In a series of cases, the Supreme Court has limited Chevron’s applicability by introducing a

threshold inquiry that uses a multifactor balancing test to determine whether the two-step Chevron analysis is

appropriate. See Barnhart v. Walton, 535 U.S. 212, 222 (2002); Christensen v. Harris Cty., 529 U.S. 576, 587 (2000).

This threshold inquiry is often referred to as Chevron “step zero.” See, e.g., Cass R. Sunstein, Chevron Step Zero, 92

VA. L. REV. 187 (2006).

For a detailed discussion of Chevron deference, see CRS Report R43203, Chevron Deference: Court Treatment of

Agency Interpretations of Ambiguous Statutes, by (name redacted) and (name redacted)

[hereinafter CRS Chevron

Report].

185

Specifically, in Brand X, the Supreme Court held that a prior judicial interpretation of an agency’s statutory

authority does not preclude an agency from adopting a different reading in the future unless the court concludes that

Congress clearly spoke to the issue at Chevron’s first step. See 545 U.S. 967, 981 (2005) (“Only a judicial precedent

holding that the statute unambiguously forecloses the agency’s interpretation, and therefore contains no gap for the

agency to fill, displaces a conflicting agency construction.”). For more background on the Brand X case, see CRS

Chevron Report, supra note 184.

186

See Kent H. Barnett & Christopher J. Walker, Chevron in the Circuit Courts, 115 MICH. L. REV. --- (forthcoming

2017) (analyzing circuit court cases from 2003 and 2013 and concluding that agency interpretations prevailed in federal

court about 25% more often when Chevron applied than when it did not).

The Court has ruled that Chevron deference extends to questions respecting an agency’s regulatory jurisdiction. City of

Arlington v. FCC, --- U.S. ---, 133 S. Ct. 1863, 1874–75 (2013). Courts will also defer to an agency’s interpretation of

its own regulations. See Auer v. Robbins, 519 U.S. 452, 461 (1997). Several Supreme Court Justices, including Justice

Scalia, have questioned this doctrine. See Decker v. Nw. Envtl. Def. Ctr., 568 U.S. ---, 133 S. Ct. 1326, 1339 (2013)

(Scalia, J., concurring in part and dissenting in part); id. at 1338–39 (Roberts, J., concurring, joined by Alito, J.); Perez

v. Mortg. Bankers Ass’n, --- U.S. ---, 135 S. Ct. 1199, 1213 (2015) (Thomas, J., concurring); id. at 1210–11 (Alito, J.,

concurring in part and concurring in the judgment). Judge Gorsuch, however, does not appear to have written an

opinion addressing the matter in any depth.

187

Caring Hearts Pers. Home Servs. v. Burwell, 824 F.3d 968, 969 (10th Cir. 2016).

188

Id.

189

Gutierrez-Brizuela v. Lynch, 834 F.3d 1142, 1149 (10th Cir. 2016); De Niz Robles v. Lynch, 803 F.3d 1165, 1171

(10th Cir. 2015).

190

See, e.g., David Feder, The Administrative Law Originalism of Neil Gorsuch, YALE J. ON REG.: NOTICE & COMMENT

(Nov. 21, 2016), http://yalejreg.com/nc/the-administrative-law-originalism-of-neil-gorsuch/; Jonathan H. Adler,

Gorsuch’s Judicial Philosophy is Like Scalia’s—With One Big Difference, WASH. POST (Feb. 1, 2017),

https://www.washingtonpost.com/opinions/gorsuchs-judicial-philosophy-is-like-scalias--with-one-big(continued...)

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Judge Neil M. Gorsuch: His Jurisprudence and Potential Impact on the Supreme Court

declined to defer to an agency’s determination under Chevron and Brand X,191 the nominee wrote

a separate concurring opinion calling into the question the wisdom and constitutionality of the

doctrines created by both cases.192 Emphasizing the concept of separated powers envisioned by

the Founders, Judge Gorsuch’s concurring opinion distinguished between the elected legislature’s

task of setting policy prospectively and the judiciary’s duty of neutrally interpreting the law in

retroactively adjudicating disputes.193 For Judge Gorsuch, this assignment of responsibilities

ensures liberty by protecting parties who cannot alter their past conduct to the changes in

majoritarian politics and bars unelected judges from setting policy for the nation.194

Judge Gorsuch’s concurrence further noted that the Founders provided that “judicial judgments

‘may not lawfully be revised, overturned or refused faith and credit by’ the elected branches of

government,”195 ensuring that neutral decision makers would determine the meaning of the law in

disputed cases. In the views of the nominee, however, Brand X runs contrary to this constitutional

alignment by permitting executive branch agencies to displace the judiciary’s legal

determinations. As a consequence, Judge Gorsuch suggested that under Brand X, judicial

declarations of what the law means are no longer authoritative, because such decisions are

“subject to revision by a politically accountable branch of government.”196 For the nominee, the

constitutional remedy when the political branches disagree with the judiciary’s interpretation of

the law is legislation.197 But under Brand X, Judge Gorsuch has argued, the executive branch is

empowered to render decisions on the meaning of the law, effectively “legislating” without

complying with the procedures of bicameralism and presentment required by the Constitution.198

Following this line of reasoning, Judge Gorsuch’s concurrence in Gutierrez-Brizuela also

questioned the doctrine of Chevron deference itself. While the APA directs courts to interpret the

statutory authority of federal agencies,199 Chevron deference, in Judge Gorsuch’s view, operates

as an “abdication” of the courts’ duty to say what the law is.200 His concurrence notes that this

practice implicates Due Process and Equal Protection concerns with “the political branches

intruding on judicial functions.”201 Specifically, Judge Gorsuch raised concerns that, under

Chevron, regulated entities are not given fair notice as to what the law requires;202 and politicized

decision makers are accorded vast discretion to determine the law’s meaning according to “the

shift of political winds,”203 “risking the possibility that unpopular groups might be singled out for

. . . mistreatment.”204

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difference/2017/02/01/44370cf8-e881-11e6-bf6f-301b6b443624_story.html?tid=a_inl&utm_term=.306f48aef230.

191

Gutierrez-Brizuela, 834 F.3d at 1149.

192

Id. at 1149–58 (Gorsuch, J., concurring).

193

Id. at 1149–50.

194

Id.

195

Id. at 1150 (quoting Chi. & S. Air Lines v. Waterman S.S. Corp., 333 U.S. 103, 113 (1948)).

196

Id.

197

Id. at 1150.

198

Id. at 1151.

199

5 U.S.C. § 706(2)(A), (C).

200

831 F.3d at 1152 (Gorsuch, J., concurring).

201

Id.

202

Id. at 1152–53.

203

Id.

204

Compare id. at 1152 (“Transferring the job of saying what the law is from the judiciary to the executive

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Congressional Research Service

Judge Neil M. Gorsuch: His Jurisprudence and Potential Impact on the Supreme Court

Further, the Gutierrez-Brizuela concurrence also critiqued a prominent justification for the

Chevron doctrine—that Chevron merely reflects a congressional delegation of interpretive

authority—as a fiction that lacks any express manifestation of clear congressional intent.205 In

addition, Judge Gorsuch asserted that, even if Congress is assumed to have intended to delegate

interpretative authority to federal agencies, the application of Chevron deference violates the nondelegation doctrine, which bars Congress from impermissibly delegating its constitutional

authority to another branch of government.206 While acknowledging the prevailing non-delegation

principle—that in delegating authority, Congress must provide an “intelligible principle” to guide

the agency’s decision making207—Judge Gorsuch argued that the Chevron doctrine violates this

principle by giving an agency authority to interpret the scope of its own jurisdictional power and

issue broadly applicable regulations, coupled with the ability to reverse itself on short notice.208

Finally, Judge Gorsuch’s concurrence questioned the propriety of consolidating power in the

hands of a single branch of government, arguing that Chevron deference effectively “invests the

power to decide the meaning of the law . . . in the very entity charged with enforcing the law.”209

Given the “vast power” of the executive branch and the lack of effective oversight of political

appointees,210 he argued, “[u]nder any conception of our separation of powers, I would have

thought powerful and centralized authorities like today’s administrative agencies would have

warranted less deference from other branches, not more.”211 Instead, Judge Gorsuch contended in

Gutierrez-Brizuela that courts should examine the law’s meaning de novo, or without deference

to the agency’s view, allowing regulated parties to rely on consistent agency interpretations while

simultaneously allowing courts to operate properly within the Constitution’s framework.212

On the one hand, Judge Gorsuch’s views on judicial deference to agency legal interpretations

contrast with those of Justice Scalia, who, for much of his time on the bench, was viewed by

scholars as a defender of Chevron deference.213 The doctrine, for Justice Scalia, operated as a

clear background rule from which Congress could legislate.214 Judge Gorsuch’s opinions, in

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unsurprisingly invites the very sort of due process (fair notice) and equal

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