In Focus: Trump’s Supreme Court Nominee Has Favored Employers in Past Decisions


Allen Smith, J.D. By Allen Smith, J.D. February 1, 2017
In Focus: Trump’s Supreme Court Nominee Has Favored Employers in Past Decisions

For business leaders and HR professionals, Neil Gorsuch's nomination to the U.S. Supreme Court could lead to federal regulatory agencies such as the Equal Employment Opportunity Commission and Department of Labor wielding less power and influence. And some of his most prominent decisions at the 10th U.S. Circuit Court of Appeals indicate he is likely to often be an ally of employers, if confirmed by the Senate.

Observers describe Gorsuch as a "textualist" and "constitutionalist"--a jurist who adheres strictly to the original legal documents' meaning and doesn't try to interpret or insert his own opinion.  As such, Gorsuch would like to see an elimination of the so-called "Chevron deference," a Supreme Court opinion that calls for courts to defer to agencies' rules as long as they are reasonable interpretations of the law, said Collin O'Connor Udell, an attorney with Jackson Lewis in Hartford, Conn.

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In Gutierrez-Brizuela v. Lynch, Gorsuch wrote a concurring decision where he described Chevron as "permitting 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 or the framer's design."

Udell said Gorsuch has ruled in favor of religiously affiliated employers, determining that the Affordable Care Act's contraceptive provisions imposed an unlawful burden on them, a decision the Supreme Court upheld (Burwell v. Hobby Lobby). He has ruled that more than six months of leave is an unreasonable accommodation and interpreted discrimination lawsuit filing deadlines strictly, she added.

David Garland, an attorney with Epstein Becker Green in New York City, agreed that Gorsuch is no fan of Chevron deference. Gorsuch's opinions often are colorful, devoid of legalese and without many legal citations, instead relying on his reasoning. A reader doesn't have to be a lawyer to understand his opinions, which are interesting and in an engaging writing style, Garland said.

The bulk of Gorsuch decisions are in favor of employers, Udell said. He follows a coherent judicial philosophy in line with originalism and separation of powers and is therefore predictable. "That predictably is useful to employers," she added.

But Gorsuch isn't a results-oriented justice. Instead he adheres to the plain language of the statute, emphasized Garland, who is no relation to previous Supreme Court nominee Merrick Garland. Former President Barack Obama nominated Merrick Garland to the Supreme Court last year following former Justice Antonin Scalia's death, but the Senate never voted on the nomination.

Gorsuch's Admiration of Scalia No Secret

Gorsuch has made his admiration of Scalia plain in many lectures and articles, especially eloquently in a lecture at Case Western Reserve University School of Law, Udell noted. (Case Western Reserve Law Review)

Who Is Neil Gorsuch, Trump's First Pick for the Supreme Court?

Gorsuch's nomination to the 10th Circuit easily sailed through the Senate. He has clerked for two Supreme Court justices as well as for conservative Judge David Sentelle on the D.C. Circuit. (NPR)

Pelosi: Gorsuch 'A Very Bad Decision'

It remains to be seen whether Gorsuch will face an uphill confirmation fight. Minority Leader Nancy Pelosi, D-Calif., was swift to pan Gorsuch's nomination, calling it "a very bad decision, well outside the mainstream of American political thought." Senate Democrats may still be smarting over Republican senators blocking Merrick Garland's nomination last year. Republicans will need eight Democratic Senate votes to end a filibuster, if they follow the traditional rules of debate. (The Hill)

Democrats Are Ready to Fight Trump's Supreme Court Pick

But it is possible that Republicans may choose to confirm Gorsuch's nomination only by a majority vote if Democrats filibuster. Senate filibusters of Supreme Court nominations are, in fact, rare. (Los Angeles Times)

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