• January 31, 2017

Ending months of speculation, President Donald Trump has nominated the Honorable Neil McGill Gorsuch to succeed Justice Antonin Scalia on the U.S. Supreme Court.

If confirmed by the Senate, Judge Gorsuch would bring more than 10 years of judicial experience to the position. Still, the Supreme Court is sui generis, different than any other court in the land, and any nominee will be the subject of intense scrutiny as Court watchers assess the nominee’s record for clues as to how his or her vote will affect the landscape.


Judge Gorsuch is a federal judge on the U.S. Court of Appeals for the Tenth Circuit, in Denver. He received a B.A. from Columbia University in 1988, a J.D. from Harvard Law School in 1991, and a Doctorate of Legal Philosophy from Oxford University in 2004. Gorsuch clerked for D.C. Circuit Judge David B. Sentelle in 1991-1992 and then for Supreme Court Justices Byron White and Anthony Kennedy in 1993-1994. He practiced law with Kellogg, Huber, Hansen, Todd, Evans & Figel from 1995-2005 and then became a Deputy Associate Attorney General at the U.S. Department of Justice in 2005-2006. On May 10, 2006, President George W. Bush nominated Judge Gorsuch to the Tenth Circuit, and he was confirmed on July 20, 2006.


Judge Gorsuch has been described as having a deep commitment to the original understanding of the Constitution and the distinction between legislative and judicial powers. For example, in Gorsuch’s concurrence in Gutierrez-Brizuela v. Lynch, 834 F.3d 1142 (10th Cir. 2016), he took aim at the role of administrative agencies and, in particular, the doctrine of Chevron deference. Gorsuch stated that courts “are not fulfilling their duty to interpret the law and declare invalid agency actions inconsistent with those interpretations in the cases and controversies that come before them. A duty expressly assigned to them by the [Administrative Procedure Act] and one often likely compelled by the Constitution itself.” Id. at 1153. According to Gorsuch, this judicial abdication means that “liberties may now be impaired not by an independent decision maker seeking to declare the law’s meaning as fairly as possible—the decision maker promised to them by law—but by an avowedly politicized administrative agent seeking to pursue whatever policy whims may rule the day.” Id. Explicitly calling for reconsideration of the doctrine of Chevron deference to administrative agencies, including those that regulate labor and employment such as the Equal Employment Opportunity Commission and the National Labor Relations Board, he wrote, “Chevron … permit[s] executive bureaucracies to swallow huge amounts of core judicial and legislative power and concentrate federal power in a way that seems more than a little difficult to square with the Constitution of the framers’ design.” Id. at 1149.

Judge Gorsuch’s adherence to the doctrine of separation of powers extends to his recognition that courts of appeal are creations of Congress, and the boundaries of their jurisdiction are staked by statute. McClendon v. City of Albuquerque, 630 F.3d 1288, 1292 (10th Cir. 2011). He has only rarely issued decisions in class or collective matters, typically finding that the Court of Appeals lacked jurisdiction. Those opinions he has authored reviewing district courts’ class certification decisions reflect his commitment to the proposition that the district court enjoys considerable discretion.

According to Judge Gorsuch, there may be no single right answer to the question, but a range of possible outcomes sustainable on the law and facts, and he is apt to “defer to the district court’s judgment so long as it falls within the realm of these rationally available choices.” Shook v. Bd. of County Comm'rs of El Paso, 543 F.3d 597, 603 (10th Cir. 2008). That said, his decisions recognize the necessity of practicality or, as similarly stated in Federal Rules of Civil Procedure Rule 23, manageability. In Shook, affirming the district court’s denial of certification, he confirmed that manageability, as it relates to the provision of injunctive relief, is a valid consideration under Rule 23(b)(2) — meaning that, in practice, the relief must be appropriate for the class as a whole. Thus, “[a] class action may not be certified under Rule 23(b)(2) if relief specifically tailored to each class member would be necessary to correct the allegedly wrongful conduct of the defendant.” Id. at 604. Gorsuch reasoned that requiring the Court to undertake a time-consuming inquiry into individual circumstances or characteristics of class members or groups of class members would render the suit “unmanageable and little value would be gained in proceeding as a class action.” Id.

Judge Gorsuch has applied discrimination charge filing deadlines strictly against plaintiffs, rejecting arguments that would expand those time periods. He also has not hesitated to reject federal whistleblower claims. In doing so, he has looked at the plain language of the statute and rejected plaintiffs’ arguments that coverage would serve the greater purpose of the statute at issue.

Judge Gorsuch’s most notable benefits-related opinion was a concurrence in Hobby Lobby Stores, Inc. v. Sebelius, 723 F.3d 1114 (10th Cir. 2013), in which several employers challenged the contraceptive mandate imposed by the Affordable Care Act on religious-liberty grounds. The Tenth Circuit, in an en banc opinion, reversed the district court’s refusal to enter preliminary injunctions against the mandate. Gorsuch wrote a separate concurrence to emphasize that the individual owners of the plaintiff-employers also had standing to challenge the mandate. Id. at 1152-59. The Supreme Court affirmed the Tenth Circuit’s ruling on a 5-4 vote. See Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751 (2014). The interests of religiously affiliated employers will come into play as early as this term, when the Supreme Court considers the scope of ERISA’s exemption for “church plans.”

Beyond his concurrence in Hobby Lobby, Judge Gorsuch has authored only a few ERISA opinions. None of these are particularly noteworthy, although they suggest that he takes a practical and even-handed approach to technical ERISA matters.

With respect to leave-management issues, Judge Gorsuch authored the decision in Hwang v. Kansas State Univ., 753 F.3d 1159 (10th Cir. 2014), in which the Tenth Circuit determined that a leave of absence of more than six months was an unreasonable accommodation. Gorsuch wrote, “It’s difficult to conceive how an employee’s absence for six months … could be consistent with discharging the essential functions of most any job in the national economy today.” Id. at 1162.


Next steps: The nomination must be approved by the U.S. Senate after the Senate Judiciary Committee holds a hearing. After a hearing, the committee votes on whether to put the nominee before the Senate. If the committee votes to move forward with the nominee, the Senate will vote on the nomination. A majority vote of the Senate is needed to put the nominee on the Court.

President Trump may have occasion to fill another Supreme Court seat in the next four years, with Justice Ruth Bader Ginsburg at age 83, Justice Anthony Kennedy at age 80, and Justice Stephen Breyer at age 78. Moreover, Trump will have the opportunity to leave a lasting mark on the federal judiciary, which currently has more than 100 vacancies pending in the U.S. District Courts and the Courts of Appeals.

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