Judge Neil M. Gorsuch: His Jurisprudence and Potential Impact on the Supreme Court
Released: 2017-03-08T00:00:00

O 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) to fill the vacancy on the Supreme Court of the United States created by the 2016 death of Justice Antonin Scalia. Judge Gorsuch was appointed to the Tenth Circuit by President George W. Bush in 2006. 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, assistin g 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. 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, 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 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. Where relevant, the report also notes Judge Gorsuch's nonjudicial writings, many of which address assisted suicide and euthanasia.

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. 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 [author name scrubbed], 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 [author name scrubbed] and [author name scrubbed].

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. For example, Justice Felix Frankfurter, who had a reputation as a "progressive" legal scholar prior to his appointment to the Court in 1939, disappointed 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 II and the early Cold War era. 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, 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. In the years that followed, however, Justice Blackmun authored the majority opinion in Roe v. Wade recognizing a constitutional right to terminate a pregnancy. He was generally considered one of the more liberal voices on the Court when he retired in 1994.

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. Federal appellate judges are bound by Supreme Court and circuit precedent and, therefore, are not normally in a position to espouse freely their views on particular legal issues in the context of their judicial opinions. 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. As a result, the appellate courts consider "many routine cases in which the legal rules are uncontroverted." 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. 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. Accordingly, while Judge Gorsuch's work on the Tenth Circuit may provide some insight into his general approach to particular legal issues, 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, it still may be difficult to determine the preferences of the nominated judge if the nominee did not actually write 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. For example, in an effort to promote consensus on a court, some judges will decline to dissent unless the underlying issue is particularly contentious. 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.'"

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. 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, 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 the panel. 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.

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.

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), 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, a number in line with the national average for the regional federal courts of appeals. The Tenth Circuit also hears a number of private civil litigation disputes, such as cases on labor, insurance, contract, and tort law. On the other hand, some seven percent of the Tenth Circuit's docket is devoted to administrative agency appeals , a percentage far below that of the D.C. Circuit, where over half the docket consists of administrative matters as a result of various jurisdictional statutes and the court's location in the nation's capital. 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.

Role of the Judiciary

In assessing how Judge Gorsuch views the role of the judiciary, many commentators have likened the nominee to Justice Scalia. 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. 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, or resulted in too much ambiguity in the meaning of the law. Following the nomination of Judge Gorsuch, many commentators opined that he would, if confirmed, follow in Justice Scalia's footsteps as an originalist, and largely "preserve the ideological balance that existed on the court when [Justice] Scalia died." These 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. 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."

On the other hand, 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." 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." However, the nominee also noted the influence of "three significant but quite different judges" who "brought him up in the law," Judge David Sentelle and Justices Byron White and Anthony Kennedy. This statement has prompted some commentators to compare the nominee to those jurists, as well.

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." 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." Rejecting the view of the judge as a "pragmatic social-welfare maximizer," Judge Gorsuch, quoting Justice Scalia, argued for a more limited role for judges in the American political system.

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. 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. 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." 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.

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" —a view that can be seen to favor a more formalist approach to the law. 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 obtain a mining permit from the agency. In so holding, the nominee adopted what he characterized as a "simple and predictable" two-part test for determining what constitutes Indian land. 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."

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. 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.

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. 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." 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. 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.

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, Judge Gorsuch has frequently been described as a talented writer. In particular, the nominee's judicial writings—which frequently employ vivid prose, memorable turns of phrase, and even humor —have been praised widely by legal observers for their clarity and accessibility. But whereas Justice Scalia's writing could be pointed and acerbic in disagreeing with his colleagues on the bench, Judge Gorsuch's judicial writings have been noted for their cordiality. His dissents, in particular, often express his agreement with or admiration for, at least, certain aspects of the majority's opinion.

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. 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. 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." As Table 1 indicates, 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, 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. To the extent such views are probative, Judge Gorsuch's majority opinions were accompanied by separate opinions roughly 3.3 percent of the time. 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. Although the Tenth Circuit has tended to generate few dissents overall, 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 writes or, perhaps, has the ability to persuade others to join his opinions. 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 .

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 decisions —1.6 percent of all cases in which he participated—places him in the middle 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.

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. 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. 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. Perhaps more importantly, because separate opinions are infrequent on the Tenth Circuit, the dataset is relatively small, and only a handful of dissents and concurrences distinguish Judge Gorsuch's numbers from those of his colleagues.

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." Likewise, another former colleague, Robert Henry, now the President of Oklahoma City University, described Judge Gorsuch's "judicial temperament" as "superb."

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," 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. While the nominee has not been immune from criticism that particular majority opinions he wrote swept too broadly, in contrast to Justice Scalia, Judge Gorsuch's writings have generally espoused a more minimalist role for courts. For example, he noted in a 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." And in a 2009 concurrence, the nominee wrote that "[j]udicial restraint usually means answering the questions we must, not those we can." Indeed, in a number of opinions the nominee expressly limited the scope of the majority opinions he authored. 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. In a similar vein, while the nominee has occasionally questioned precedent that he viewed as inconsistent with the rule of law, 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."

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, wherein the Court ultimately affirmed the Tenth Circuit decision by a 5-4 vote. 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. One opinion that Judge Gorsuch joined, Direct Marketing Ass'n v. Brohl , was reversed by the Court in a substantive opinion. 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.

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. 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. 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. With Judge Gorsuch in particular, attention to the statutory text has often centered upon questions of grammar, with the nominee once going so far as to diagram part of a sentence in a written opinion. 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. On the other hand, the nominee's recently expressed concerns about " Chevron deference" —judicial deference to the reasonable interpretations by executive branch agencies of ambiguous or silent statutes –distinguish him from Justice Scalia in certain ways. 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.

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" or "plain language" of the statute in question (although his colleagues on the bench sometimes took different views as to whether this language was, in fact, so clear ). The exact words of the statute often formed the starting point for Judge Gorsuch's discussion of questions of interpretation, and he has generally accorded such words their customary meaning, as reflected by their dictionary definitions. Perhaps the most notable aspect of the nominee's discussion of statutory text, though, has been his focus on the grammar of legislative language and, in particular, the various parts of speech used in the statutory text. For instance, as noted above, in his 2015 opinion for a majority of the en banc Tenth Circuit in United States v. Rentz , 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 firearms —against a defendant who fired a single shot that hit two separate victims.

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.

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." According to Judge Gorsuch, such a reading "defies grammatical gravity and linguistic logic."

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," express statements of congressional purpose, and the history of the statute. The nominee has also invoked a number of canons—or general principles—of statutory interpretation when construing text that is seen to be ambiguous. 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 .

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." This canon is generally said to allow judges to "override even unambiguous statutory texts . . . in order to avoid putatively absurd consequences in their application." However, Judge Gorsuch expressed concern that broad 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. 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. 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. 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.

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, Judge Gorsuch has cited legislative history materials in certain cases. 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. He has elsewhere expressed concerns about the use of legislative history materials similar to those voiced by Justice Scalia. 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. 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. He has also expressed, as Justice Scalia did, 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.

Judge Gorsuch has similarly expressed concerns, akin to those voiced by Justice Scalia, 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. Other concerns appear to be grounded in the nominee's views about the respective roles of the judicial and legislative branches, as previously noted. 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. 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.

Administrative Law

Administrative law cases at the Supreme Court are often contentious, resulting in divided decisions on legal issues of national import. 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. While the Tenth Circuit's docket does not include as many administrative law cases as other federal courts, 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. 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. In the few judicial access cases in which Judge Gorsuch wrote a separate opinion, he has tended to do so on the basis that the court lacked jurisdiction over the suit. 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. Judge Gorsuch, however, wrote a concurring opinion concluding the court lacked subject matter jurisdiction over the case in the first place. Similarly, in Kerr v. Hickenlooper , a suit brought by state legislators claiming that a voter initiative violated the Constitution's Guarantee Clause, the original three-judge panel rejected arguments that the court lacked jurisdiction over the case. 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.

Statutory Review Cases. As background, under the Administrative Procedure Act (APA), 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." Pursuant to the framework established by the Supreme Court in Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc. , 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. In National Cable & Telecommunications Ass'n v. Brand X Internet Services , the Supreme Court interpreted Chevro n to extend to an agency's interpretation of a silent or ambiguous statute even if a court had previously interpreted the statute in question. As a statistical matter, under the Chevron doctrine, courts have often deferred to an agency's interpretation of its own statutory authority.

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." 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.'" 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. In perhaps the most discussed of Judge Gorsuch's opinions, Gutierrez-Brizuela v. Lynch , after writing for a unanimous panel that declined to defer to an agency's determination under Chevron and Brand X , the nominee wrote a separate concurring opinion calling into the question the wisdom and constitutionality of the doctrines created by both cases. 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. 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.

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," 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." For the nominee, the constitutional remedy when the political branches disagree with the judiciary's interpretation of the law is legislation. 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.

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, Chevron deference, in Judge Gorsuch's view, operates as an "abdication" of the courts' duty to say what the law is. His concurrence notes that this practice implicates Due Process and Equal Protection concerns with "the political branches intruding on judicial functions." Specifically, Judge Gorsuch raised concerns that, under Chevron , regulated entities are not given fair notice as to what the law requires; and politicized decision makers are accorded vast discretion to determine the law's meaning according to "the shift of political winds," "risking the possibility that unpopular groups might be singled out for . . . mistreatment."

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. 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 non-delegation doctrine, which bars Congress from impermissibly delegating its constitutional authority to another branch of government. While acknowledging the prevailing non-delegation principle—that in delegating authority, Congress must provide an "intelligible principle" to guide the agency's decision making —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.

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." Given the "vast power" of the executive branch and the lack of effective oversight of political appointees, 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." 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.

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. The doctrine, for Justice Scalia, operated as a clear background rule from which Congress could legislate. Judge Gorsuch's opinions, in contrast, can be read to suggest that he might favor eliminating the doctrine, or at least cabining its application as he did in the majority opinion in Gutierrez-Brizuela and in another case discussed below, De Niz Robles v. Lynch . As a result, if he were to succeed Justice Scalia, the nominee's opinions in De Niz Robles and Gutierrez-Brizuela could suggest that he might favor a narrowing of the scope of Chevron deference in future cases. On the other hand, while Justice Scalia supported Chevron deference in cases of perceived statutory ambiguity, he nevertheless frequently found that statutory text was unambiguous, and, thus, there was no need to consider whether deference to the agency was appropriate. In that vein, insofar as Judge Gorsuch's decisions have found statutes to be unambiguous, his approach to such statutes may be generally consistent with Justice Scalia's views.

Judge Gorsuch's opposition to the doctrine of Brand X on separation-of-powers grounds, on the other hand, finds harmony with Justice Scalia's view on the matter. Justice Scalia wrote a dissenting opinion in that case, objecting to the majority's decision on pragmatic and constitutional grounds. In Justice Scalia's view, and in a view similar to the nominee's, Brand X impermissibly permits "[j]udgments within the powers vested in courts by the Judiciary Article of the Constitution" to be overruled by executive branch officers.

Nonetheless, Judge Gorsuch, while questioning the Supreme Court's precedents, acknowledged that as a federal appeals court judge, he was not in a position to overrule cases like Chevron and Brand X . At the same time, when the applicability of these cases was unclear, Judge Gorsuch appears to have cabined the circumstance in which these doctrines apply. For example, in De Niz Robles , a precursor to the Tenth Circuit's opinion in Gutierrez-Brizuela , Judge Gorsuch, writing for a unanimous panel, rejected the retroactive application of an agency's adjudication that upset the affected party's reliance interests. While the details of the procedural history of De Niz Robles is quite complex and beyond the scope of this report, the Tenth Circuit had previously deferred to an agency's interpretation of an ambiguous statute under Chevron and Brand X when the agency prospectively applied a statutory interpretation at odds with the court's prior reading. In De Niz Robles , however, the agency retroactively applied an interpretation—at odds with the earlier Tenth Circuit opinion—against a party who had significant reliance interests on the prior contrary Tenth Circuit decision.

Judge Gorsuch's opinion in De Niz Robles rejected the application of deference in this situation, effectively narrowing the circumstances in which the doctrines of Chevron and Brand X were appropriate. In other words, at least in the Tenth Circuit, De Niz Robles did not read Brand X to apply when an agency seeks to apply its interpretation retroactively via adjudication. As in his opinion in Gutierrez-Brizuela , the nominee grounded his decision in principles of separation of powers, due process, and equal protection, noting the presumptive prospective effect of legislation compared with the retroactive effect of a judicial decision. Judge Gorsuch reasoned that the more an agency's decision resembles that of a judge—applying a preexisting rule to new facts and circumstances—the stronger the case for retroactive application of the decision; but the more the decision resembles legislation—prescribing new generally applicable rules—the less likely such a decision should be granted retroactive force. Given this guidepost, De Niz Robles concluded that when an agency issues an interpretation of an ambiguous statutory provision under Chevron via an adjudication that displaces a contrary judicial decision, it is operating like legislators setting new policies. Consequently, per the 2015 ruling, such decisions should presumptively apply only prospectively.

Beyond Judge Gorsuch's two major rulings in Gutierrez-Brizuela and De Niz Robles , he has tended to be more skeptical of deferring to agencies on legal questions. For example, in TransAm Trucking, Inc. v. Department of Labor , the panel majority upheld a determination by the Department of Labor that a truck driver was terminated in violation of the Surface Transportation Assistance Act. At issue was whether the truck driver engaged in protected activity under the Act by "refus[ing] to operate a vehicle" due to safety concerns. The court deferred under Chevron to the Department's determination that the driver's decision to drive his truck away from his trailer in freezing conditions qualified as protected activity under the statute. Judge Gorsuch wrote a dissenting opinion, arguing that the statute's meaning was plain; for him, "refus[ing] to operate a vehicle" simply did not include actually driving a vehicle. Further, he rejected extending Chevron deference to the agency's interpretation, noting that, in contrast to the majority's reasoning, the absence of a statutory definition did not create ambiguity. Instead, Judge Gorsuch thought the statute was clear and unambiguous, and therefore would have ruled against the agency's interpretation at Chevron 's first step.

Discretionary and Factual Review. In contrast to his views on the doctrine of judicial deference to agency statutory interpretations, Judge Gorsuch does not appear to have expressed strong objections to the mechanics of discretionary or factual review, a second major area of substantive administrative law wherein courts will "hold unlawful and set aside agency actions, findings, and conclusions found to be arbitrary, capricious, [or] an abuse of discretion." The nominee has joined or written several unanimous decisions upholding agency actions under the arbitrary and capricious standard. However, the nominee has sometimes departed from his colleagues and written separately to find agency actions arbitrary and capricious or lacking in substantial evidence, particularly where he has doubted that the parties received fair notice of applicable rules and regulations. For example, in National Labor Relations Board v. Community Health Services , the majority panel upheld the Board's decision to "exclude interim earnings from backpay calculations when the employer has wrongfully reduced employee hours, but not terminated employment." The majority noted that while the agency's decision was inconsistent with prior determinations, the agency had considerable discretion under the National Labor Relations Act to determine how back pay should be calculated and, accordingly, ruled that its justifications were reasonable. Judge Gorsuch dissented, claiming that the agency's decision failed to explain why it treated similarly situated entities—that is, terminated employees versus reduced hours employees—differently and departed from its own preexisting rules. His opinion rejected the agency's offered rationales, faulting the agency for essentially announcing a new rule without justification, and arbitrarily distinguishing between situations where employees were terminated or had their hours reduced.

Capital Punishment

Judge Gorsuch's views on capital punishment may be particularly important insofar as he would, if confirmed, be replacing Justice Scalia, who believed the death penalty was fully consistent with the Eighth Amendment. With two Justices currently on the Court who have argued openly that the practice is unconstitutional in all its forms, and with the Court remaining closely divided on many issues relating to capital punishment, Judge Gorsuch could be influential regarding the future of the death penalty. Although the nominee has not written extensively on capital punishment, he has authored or joined opinions reviewing the manner in which states carry out executions, as well as opinions reviewing state court convictions and sentences in capital cases. These votes and opinions suggest that, while the nominee is not wholly opposed to scrutinizing a state's imposition of the death penalty, in line with his general views on judicial restraint, he generally accords a large degree of deference to decisions by state legislators, judges, and executive branch officials on matters relating to the states' imposition and administration of capital punishment.

One issue over which the Court has remained divided concerns the manner in which states carry out the death penalty. For example, in December 2016, the Supreme Court split 4-4 over whether to stay (i.e., suspend pending further review) the execution of an Alabama man who had challenged the state's method of administering the death penalty on the grounds that it violates the Eighth Amendment's prohibition against "cruel and unusual punishment." The tie vote resulted in the denial of the inmate's application for a stay and left in place a decision by the Eleventh Circuit that had rejected as untimely and unmeritorious the prisoner's Eighth Amendment challenge to the drug protocol that the State of Alabama used in its lethal injections. Judge Gorsuch's votes in support of two Tenth Circuit opinions rejecting similar challenges to the method in which a state carried out executions suggests that, if confirmed, he might provide a fifth vote against such challenges. In Warner v. Gross , Judge Gorsuch joined the majority opinion holding that the use of the drug midazolam in executions by lethal injection was unlikely to violate the Eighth Amendment's prohibition against cruel and unusual punishment. The Supreme Court later affirmed that decision by a vote of 5-4, with Justice Scalia in the majority. Similarly, in Estate of Lockett v. Fallin , Judge Gorsuch joined the majority opinion affirming the dismissal of an Eighth Amendment claim brought by an executed prisoner's estate. The court, relying on recent guidance from the Supreme Court, held that an accidental and "isolated mishap" that occurs during an execution does not violate the Eighth Amendment even if it causes some pain to the inmate.

The nominee's views on the death penalty may also find expression in opinions he has authored or joined reviewing federal district court decisions on habeas corpus petitions. Assuming they have satisfied various procedural hurdles, state prisoners sentenced to death pursuant to a judgment of a state court may challenge their convictions and sentences in federal court on the grounds that they violate the Constitution or other federal law. Such prisoners may file a petition seeking a writ of habeas corpus—that is, generally, a judicial determination as to whether the prisoner should receive a new trial, new sentence, or be released. Notably, the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) requires federal courts to accord a large degree of deference to state court decisions when reviewing a prisoner's conviction or sentence. This deferential standard of review, which is designed to avoid friction between the federal government and the states, typically makes it difficult for an inmate to prevail in a federal habeas case.

Like Justice Scalia, who rarely voted to grant petitioners' applications for federal habeas relief in death penalty cases, Judge Gorsuch has authored or joined majority opinions denying such relief in a number of cases, emphasizing AEDPA's deferential standard of review. In a few cases, the judge has dissented from majority opinions granting such relief, arguing that the court should have accorded more deference to the state court's decision to reject the inmate's challenges to his sentence or conviction. For example, in Wilson v. Workman , the Oklahoma Court of Criminal Appeals had rejected two death row inmates' claims of ineffective assistance of counsel after declining to consider additional evidence proffered by the inmates on an issue that was not part of the trial court's record in the original proceeding. The Tenth Circuit, sitting en banc, held that the deferential standard of review of state court decisions under AEDPA does not apply when the state court fails to consider material evidence because the state court has not adjudicated the claim "on the merits" under AEDPA. Judge Gorsuch authored a dissent arguing that a state court's decision to exclude evidence in accordance with state evidentiary rules amounted to an adjudication on the merits, thereby requiring federal courts to apply AEDPA's deferential standard in reviewing the state court's decision.

A further example of his tendency to defer to the states on capital punishment issues is his opinion in Eizember v. Trammel , in which the court reviewed the convictions and death sentence of a man who had murdered a married couple and committed various other crimes. The prisoner argued that the state trial court should have excluded jurors because of their alleged bias in favor of capital punishment. All three judges on the panel agreed that the prisoner's convictions should be affirmed, and two judges (including Judge Gorsuch) agreed that the prisoner's sentence should be affirmed. However, Judge Gorsuch disagreed with the other two judges on the panel on the question of whether the state court of appeals had neglected to apply controlling Supreme Court precedent properly in assessing the petitioner's claim of juror bias during sentencing. He argued that the court should defer to the state appeals court's statements in its opinion, which indicated that the state trial court had applied the correct standard. Judge Gorsuch asserted that the Tenth Circuit owed "double deference" to the state criminal appeals court's decision that the state trial court did not improperly fail to exclude the jurors from sentencing proceedings.

Although Judge Gorsuch's opinions in these cases suggest he will largely defer to the states on matters related to capital punishment, Judge Gorsuch's concurrence in one capital case in which the majority denied the petition for habeas relief indicates that there are some circumstances in which he may question the state's imposition of the death penalty. In Williams v. Trammel , Judge Gorsuch agreed that the court should deny the petitioner's claim for relief but expressed concerns with the state court's apparent willingness to impose capital punishment on an accomplice who had not intended that a criminal activity result in the death of another person or had not otherwise shown a reckless disregard for human life during the commission of the crime. The judge wrote that the Eighth Amendment phrase "cruel and unusual punishment," as originally understood by people at the time of the founding and subsequently interpreted by the Supreme Court, would likely bar such a concept of accessory liability. Thus, although Judge Gorsuch has generally demonstrated a propensity to defer to the decisions of state legislators, judges, and executive branch officials in matters relating to capital punishment, he appears willing to scrutinize state court decisions that appear to contravene existing constitutional protections for capital defendants if those protections are clearly articulated in Supreme Court decisions. Nevertheless, Judge Gorsuch may be reluctant to engage in a broad reading of the Constitution and Supreme Court precedent that would expand the rights of such defendants beyond existing precedent.

Civil Liability

One area where Judge Gorsuch could be influential, were he to be elevated to the Supreme Court, involves the procedural and substantive limits that federal law imposes on the exposure of defendants to monetary liability in civil cases, particularly in the context of lawsuits resulting from allegedly faulty products, discriminatory practices, or fraudulent activities. This is because Justice Scalia, whom Judge Gorsuch could succeed on the Court, cast critical votes in several closely contested cases that read federal law relatively expansively to restrict the ability of plaintiffs to use (1) procedural vehicles, such as class action litigation, to facilitate civil recoveries, and (2) substantive state law, including common law tort actions, to sue businesses that may have harmed them. In other cases, Justice Scalia cast important votes in cases that more narrowly interpreted the scope of federal law to limit corporate defendants' potential civil liability. Given Justice Scalia's decisions, commentators have considered how Judge Gorsuch might affect the Roberts Court's perceived "warmth" toward businesses on civil liability matters if the nominee were to be confirmed to the Court. Pointing to his writings that are critical of the use of class action lawsuits in securities fraud cases, his apparent preference for arbitration over litigation, and his disfavor of affording deference to government agencies, some commentators suggest that Judge Gorsuch would limit the exposure of civil defendants, a tendency that may be perceived as business friendly.

Through his judicial and nonjudicial writings, Judge Gorsuch has expressed an interest in issues related to civil liability, including what has been described by one commentator as a "penchant for . . . high pleading and procedural standards for civil litigants." This interest is evident in several pointed critiques that he has authored on what he perceives as the misuses or excesses of litigation. In addition, when asked to identify "the 10 most significant cases over which you presided" on the Senate Judiciary Committee's "Questionnaire for Nominee to the Supreme Court," two of the ten cases Judge Gorsuch selected were opinions that affirmed the dismissal of civil claims by the district court: a product liability suit involving a medical device and a proposed class action alleging securities fraud.

One broad theme that can be gleaned from Judge Gorsuch's judicial opinions related to civil liability is his distaste for the time and costs associated with protracted litigation. In Cook v. Rockwell Int ernationa l Corp. , for example, the nominee lamented:

It took a titanic fifteen years for the case to reach a jury. No doubt a testament to contemporary civil litigation practices that ensure before any trial is held every stone will be overturned in discovery—even if it means forcing everyone to endure the sort of staggering delay and (no doubt) equally staggering expense the parties endured here. Somehow, though, this case managed to survive the usually lethal gauntlet of pretrial proceedings and stagger its way to trial.

From this sentiment, it might be surmised that Judge Gorsuch may be particularly receptive to curtailing the costly litigation process through strict readings of statutes that create private rights of action and provide for procedural devices, such as class action suits, broad enforcement of arbitration clauses, or other means, to provide swift and definitive ends to protracted civil litigation to the extent the law allows. Nonetheless, these views appear to be more nuanced when applied to the facts of particular cases.

In keeping with his approach to statutory interpretation, in civil liability cases, Judge Gorsuch has shown a tendency to examine closely the federal statute or rule in question, especially in cases involving determinations of eligibility for class action status. In Hammond v. Stamps.com, Inc. , for example, the plaintiff filed a putative class action in state court alleging unlawful trade practices involving allegedly misleading website disclosures. When the defendant sought to remove the case to federal court pursuant to the federal Class Action Fairness Act, the district court refused to exercise jurisdiction because it found the defendant failed to meet its burden of showing that over $5 million was "in controversy," as required by the statute. On appeal, Judge Gorsuch authored a unanimous opinion reversing the district court based on a detailed construction of the statutory term "in controversy," which he described as "a term heavily encrusted with meaning." Judge Gorsuch explained: "As historically used, the term 'in controversy' has never required a party seeking to invoke federal jurisdiction to show that damages 'are greater' or will likely prove greater 'than the requisite amount' specified by statute." Based on this construction, he found "federal jurisdiction here beyond doubt," thereby allowing the class action to proceed in federal court.

Similarly, in BP Am erica , Inc. v. Oklahoma ex rel. Edmondson , a suit brought in state court alleging manipulations of propane gas prices in violation of state law, BP sought to remove the case to federal court as a "mass action" under the Class Action Fairness Act. The district court denied this request. In a unanimous opinion analyzing whether the Tenth Circuit had jurisdiction to hear an interlocutory appeal under the Class Action Fairness Act, Judge Gorsuch's analysis hinged largely on the plain language of the statute: "When we interpret a statute we begin, of course, with its plain terms. And here, as we've mentioned, the text of [the relevant provision of the Class Action Fairness Act] provides that a court of appeals 'may accept an appeal' from an order of remand 'if application is made to the court of appeals not [more] than 7 days after entry of the order.'" Noting that "[t]he statute doesn't place any other conditions on our discretion," the nominee allowed the interlocutory appeal.

Judge Gorsuch's textualist approach to statutes also extends to his interpretations of procedural rules, including those relevant to class action litigation. For example, in Shook v. Board of County Commissioners of the County of El Paso , the district court denied the motion for class certification of county jail inmates with mental health needs based on its conclusion that the proposed class would be unmanageable, chiefly because of the difficulty of fashioning relief that would be applicable to the class as a whole. On appeal, Judge Gorsuch affirmed this conclusion in a unanimous opinion based on a close examination of the "two independent but related requirements" of Federal Rule of Civil Procedure 23, which governs class actions in federal courts. The nominee concluded that the rule "demands a certain cohesiveness among class members with respect to their injuries, the absence of which can preclude certification," as he found the rule did in Shook .

Although he has few judicial opinions on the matter, Judge Gorsuch has also expressed clear opinions about a subcategory of class actions—those involving securities fraud—in nonjudicial writings. In 2005, the nominee, then in private practice, coauthored two articles critical of securities fraud class actions. While acknowledging "some of the social benefits" of class action lawsuits, Judge Gorsuch also described the "vast social costs" resulting from these types of suits, arguing that "economic incentives unique to securities litigation encourage class action lawyers to bring meritless claims and prompt corporate defendants to pay dearly to settle such claims. These same incentives operate to encourage significant attorneys' fee awards even in cases where class members receive little meaningful compensation." To counter these purportedly negative consequences, the nominee advocated for stricter enforcement of the causation requirement in securities fraud class action suits.

Should he be elevated to the High Court, Judge Gorsuch could also be influential in the area of enforcement of arbitration provisions. As one commentator observed, "[a]ll recent Supreme Court decisions about arbitration were closely split by 5-4 margins," and therefore Judge Gorsuch's views on this area of law could have a significant impact. In an area where the Court has generally viewed federal law as encouraging alternative dispute resolution, the nominee's few judicial opinions on contractual arbitration clauses and the Federal Arbitration Act (FAA) might be read as favoring arbitration over litigation. In Howard v. Ferrellgas , for example, Judge Gorsuch read the FAA to require a remand to the district court to determine whether the parties had opted for arbitration, potentially precluding a class action in federal court. In reaching this outcome, Judge Gorsuch characterized the FAA as having a "heavy hand in favor of arbitration." And in Ragab v. Howard , the nominee disagreed with the panel majority's conclusion that a collection of conflicting arbitration provisions in the parties' contracts was unenforceable because "there was no actual agreement to arbitrate as there was no meeting of the minds as to how claims that implicated the numerous agreements would be arbitrated." Judge Gorsuch dissented, stating "I just don't see any doubt that the parties before us did intend to arbitrate. All six—yes six —of the parties' interrelated commercial agreements contain arbitration clauses." In doing so, Judge Gorsuch noted "the federal policy favoring arbitration embodied in the FAA," and that "[t]he Supreme Court has held that the FAA preempts state laws that single out arbitration clauses for disfavored treatment."

Like arbitration, preemption—the circumstance in which federal law displaces state causes of action, such as tort claims—has been an issue of considerable dispute on the High Court in recent years, and one in which Judge Gorsuch could have an impact should he be elevated to the Court. In determining whether federal law preempts common law tort claims, the nominee's approach, as in other areas, is centrally grounded in the words of the federal statute at issue, a method that has resulted in judgments both in favor of and against civil defendants. In Cook v. Rockwell Int ernationa l Corp. , for instance, property owners filed a class action under the federal Price-Anderson Act and state tort law against operators of a nuclear weapons manufacturing plant to recover for damages caused by releases of plutonium and other hazardous substances. After the federal claims failed, the district court disallowed the case to proceed on the state law claims, holding that they were preempted by federal law. Judge Gorsuch disagreed. Examining the statute's text, the nominee wrote: "Where does any of this language—expressly—preempt and preclude all state law tort recoveries for plaintiffs who plead but do not prove nuclear incidents? We just don't see it." While finding the statute itself determinative, Judge Gorsuch also looked to the "larger statutory structure" and the statute's legislative history to buttress his conclusion.

By contrast, in Caplinger v. Medtronic, Inc. , a case in which the plaintiff asserted a variety of state tort claims alleging the defendant had promoted an "off label" use of a medical device that resulted in the plaintiff's injuries, Judge Gorsuch authored an opinion for the majority. Caplinger affirmed the district court's dismissal of the complaint as preempted by federal law based on a reading of an express preemption clause within the Medical Device Amendments to the Federal Food, Drug, and Cosmetics Act (FDCA). This provision, however, has a complex history of statutory interpretation by the Supreme Court. Judge Gorsuch noted that one such case articulated the following test for preemption, stating: "[T]ort suits do not impose new 'requirements' on manufacturers and are not preempted so long as the duties they seek to impose 'parallel' duties found in the FDCA." But, Judge Gorsuch stated, "the Court's answer only invited the next question: when exactly does a state law duty 'parallel' a federal law duty enough to evade preemption? That term doesn't appear in the statute, so its meaning was left entirely to judicial exposition." Furthermore, he observed, "the Supreme Court has twice revisited and cut back the scope of its initial decision." Left to reconcile competing statutory interpretations by the High Court, Judge Gorsuch asked: "How are we supposed to apply all these competing instructions? It's no easy task." Nonetheless, the nominee applied these principles while referring back to the statute's plain text throughout his analysis. Ultimately, the court held that the state law claims were preempted because the plaintiff failed to identify a parallel federal requirement based on off-label promotion of a medical device.

Civil Rights

Civil rights is another area of law in which Judge Gorsuch could be influential if he were to be elevated to the Supreme Court. Justice Scalia's views regarding the scope of constitutional and statutory civil rights protections were established in a number of judicial opinions, and he participated in several closely divided cases, including cases addressing affirmative action and issues related to sexual orientation. However, unlike Justice Scalia, Judge Gorsuch's views on constitutional civil rights questions are less well known because he has had relatively few occasions to address such questions directly in cases before the Tenth Circuit. He has not, for example, had occasion to write on the constitutional limits on affirmative action or the equal protection rights of sexual minorities. Rather, most of the civil rights decisions in which the nominee has participated have centered upon statutory civil rights claims and, in particular, statutory employment discrimination claims. The nominee's opinions in these cases to date have resulted in a variety of outcomes—some favorable to individual plaintiffs, some unfavorable. Based on these decisions, an argument could be made that Judge Gorsuch's views on statutory civil rights reflect his textualist approach to construing statutes, instead of a more results-driven judicial philosophy.

Constitutional Civil Rights Claims. Judge Gorsuch has authored or otherwise participated in relatively few opinions addressing claims that a government enactment, policy, or practice has deprived persons of equal protection of the law in violation of the Fifth or Fourteenth Amendments to the U.S. Constitution, provisions that have been interpreted to implicate discrimination based on race, gender, disability, and sexual orientation. There is one opinion, Secsys LLC v. Vigil , authored by Judge Gorsuch for a unanimous panel of the Tenth Circuit, that engages in an extended discussion of equal protection. This opinion characterizes equal protection as "the law's keystone"; explores the differences between intentional discrimination and discriminatory applications or enforcement of "rules of general application"; and explains what types of government action may be subject to heightened scrutiny. However, Secsys is unusual in that the plaintiff corporation alleged that state officials had deprived it of equal protection by requiring it to award a subcontract under a state contract to a specific individual, who sought a higher price than the company was willing to pay. Writing for the panel, Judge Gorsuch rejected this claim, in part, on the grounds that the state officials would have required a similar subcontracting agreement from any other contractor, making their actions distinguishable from "a rule saying that African Americans or women may not bid for a state contract or that only those of a certain religious faith may." The nominee also described the plaintiffs as asking the court to endorse a "novel theory" of equal protection in this case to reach issues that were more commonly covered by criminal or civil laws against extortion. This language, coupled with his characterization of equal protection as "the law's keystone," could suggest that Judge Gorsuch believes that the Constitution's equal protection principles play a crucial role in prohibiting certain government discrimination based on race or sex, but may be more skeptical of interpreting the Equal Protection Clause expansively to shield against previously unrecognized forms of discrimination.

Judge Gorsuch also joined the unanimous decision by a panel of the Tenth Circuit in 2015 in Druley v. Patton , which rejected a transgendered prisoner's claim that prison officials violated her right to equal protection by, among other things, giving her inadequately low doses of her hormone medication, denying her request to wear female undergarments, and housing her in an all-male facility. Previously, in 2009, Judge Gorsuch joined a unanimous decision by a panel of the Ninth Circuit—where he was sitting by designation—in Kastl v. Maricopa County Community College District , rejecting claims that a state institution of higher education had violated the equal protection rights, among other things, of a transsexual instructor whose contract was not renewed after she had been banned from using the women's restroom "until she could prove completion of sex reassignment surgery."

In both cases, unanimous panels purported to rely on direct precedent in reaching their conclusions. For example, in Druley , the panel noted Tenth Circuit precedent holding that transsexuals are not members of a class for which heightened scrutiny is required under the Equal Protection Clause. Because of this, in the panel's view, the state officials' decisions were subject to the less stringent "rational basis review," which the decisions were able to withstand. Similarly, in Kastl , the panel noted, in a short three-page order, that the plaintiff had failed to "put forward sufficient evidence demonstrating that [the school's actions were] motivated by her gender." This, in the panel's view, caused her claims to fail.

Statutory Civil Rights Claims. More commonly, instead of assessing constitutional civil rights claims, Judge Gorsuch's opinions have addressed claims arising under one or more federal civil rights statutes. Such statutes include Title VII of the Civil Rights Act of 1964 (Title VII), as amended; the Family and Medical Leave Act (FMLA); the Age Discrimination in Employment Act (ADEA); the Americans with Disability Act (ADA); and the Individuals with Disabilities Education Act (IDEA). Examining Judge Gorsuch's various rulings interpreting these various statutes, it appears that his jurisprudence is largely a product of his preferences for textualism and rules based adjudication, as opposed to a preference to rule for a particular side. However, it should be noted that some commentators have criticized certain rulings by Judge Gorsuch in this area, taking note of the outcomes in specific cases on the grounds that the discrimination claims of particular victims were "thrown . . . out of court" in favor of a corporate or government entity. While Judge Gorsuch has authored or joined some rulings that were unfavorable to such individuals, this fact may be of limited utility in ascertaining Judge Gorsuch's views about the scope of statutory civil rights protections, as plaintiffs raising federal antidiscrimination claims, especially in the context of employment disputes, rarely prevail before the federal appellate courts as a general matter. Many of the decisions on statutory civil rights in which the nominee participated involved unanimous rulings to dismiss a particular case.

In addition, litigation involving statutory civil rights claims often turns on the facts of a particular case, as opposed to differences in opinions about the law, meaning that few universal principles may be gleaned from isolated cases. For example, in 2009 in Strickland v. United Parcel Service, Inc. , Judge Gorsuch agreed with two colleagues that the plaintiff should be able to proceed to trial on a FMLA retaliation claim, but differed from his colleagues as to the plaintiff's Title VII case based on the factual record before the court. While the other two judges voted to reverse the district court's grant of summary judgment to the defendant on the Title VII claim, Judge Gorsuch would have affirmed the lower court's decision because he viewed the plaintiff's case as lacking in evidence. In particular, he construed two key depositions relied on by the plaintiff as simply showing that the plaintiff's supervisor "harassed male employees in very much the same manner he harassed Ms. Strickland."

In another fact-intensive civil rights case resulting in a different outcome—a ruling for the plaintiffs— Orr v. City of Albuquerque , Judge Gorsuch wrote the majority opinion. This opinion, much like Strickland , engaged in a "thorough review of the record," which examined official policies and testimony from several officers to conclude that the plaintiffs had provided sufficient evidence to proceed to trial on their claims of illicit discrimination on the basis of pregnancy. And Orr is not the only case in which Judge Gorsuch has ruled in favor of the plaintiffs in a statutory civil rights case, which could suggest that the ultimate outcomes of particular cases are driven by Judge Gorsuch's general judicial philosophy as opposed to a general preference to reach a business or government friendly outcome.

Nonetheless, while evaluating Judge Gorsuch's record on statutory civil rights based on the outcomes in individual cases may not be particularly helpful, the substance of several of the nominee's opinions on federal antidiscrimination law is, at times, telling and may suggest that the nominee's general views on adjudication shape his approach to antidiscrimination claims. For instance, in keeping with his preference for clear rules and his general critique of "needless" complexities in the law, Judge Gorsuch has written multiple opinions questioning the efficacy of a central—but complicated—doctrine in federal employment discrimination litigation, the McDonnell Douglas test.

Under the McDonnell Douglas test, a plaintiff must first establish a prima facie case of discrimination, and then the burden shifts to the employer to articulate a legitimate, nondiscriminatory reason for its employment action. If the employer meets this burden, the plaintiff can still prevail by offering evidence demonstrating that the employer's explanation is pretextual. In Paup v. Gear Products, Inc. , Judge Gorsuch joined a per curiam opinion that, while acknowledging McDonnell Douglas was "binding on us" in the case at hand, noted criticism that its multipart, burden shifting test "divert[ed] attention away" from the question of whether discrimination "actually took place" and "in its stead" substituted a "proxy that only imperfectly tracks that inquiry." Similarly, in Barrett v. Salt Lake County , the nominee highlighted criticism by two colleagues that the test is not "helpful enough to justify the costs and burdens associated with its administration." Judge Gorsuch's most pointed critique of McDonnell Douglas came in a 2016 First Amendment retaliation case, Walton v. Powell. Rejecting the defendant's argument that the test should be applied in a free association case, the nominee noted that the "special and idiosyncratic" McDonnell Douglas test "has proven of limited value even in its native waters," with the Tenth Circuit finding it inapplicable outside of motions for summary judgment in cases relying on circumstantial evidence "because of the confusion and complexities its application can invite." While it is unclear whether the elimination of the McDonnell Douglas test would necessarily favor a particular side in employment litigation, legal commentators have noted that because the test is "bedrock employment law doctrine" any limits Judge Gorsuch might impose on the use of this test could cause a "significant change in how employment discrimination lawsuits are prosecuted and defended."

Other statutory civil rights cases can be seen to have been directly shaped by Judge Gorsuch's general approaches to statutory interpretation. For example, in Almond v. Unified School District #501 , the nominee employed a textualist approach in one of the first opinions interpreting the Lilly Ledbetter Fair Pay Act of 2009, concluding that the Act's expanded accrual period for "discrimination in compensation" claims applied only to "unequal pay for equal work" claims, and not to all claims of discriminatory compensation. Rejecting the view that the phrase "discrimination in compensation" was used in the Act as "some Rorschach inkblot to which we may ascribe whatever meaning springs to mind," Judge Gorsuch looked to the "language of the Act itself," the Act's structure, key canons of statutory construction, and the context in which the statute was enacted in adopting a more narrow reading of the phrase in question.

In another decision, A.F. ex rel. Christine B. v. Española Public Schools , Judge Gorsuch wrote for the majority in holding that a student who had previously settled a lawsuit involving alleged violations of the IDEA was barred from "seeking the same relief" under the ADA, the Rehabilitation Act, and 42 U.S.C. § 1983. The nominee relied primarily on the "plain text" of the statute, which the majority construed to mean that plaintiffs attempting to bring civil actions under other federal laws "seeking the same relief IDEA supplies" must exhaust certain procedures set forth in the IDEA "'to the same extent' as you must to bring a civil action under IDEA itself." The dissenting judge, however, argued that the majority had "misread[]" the statute in question by viewing Section 1415( l ) of Title 20 of the United States Code as unambiguously imposing certain requirements on a litigant like A.F. The dissent also objected that the outcome under the majority's reading ran contrary to Congress's intent by "harm[ing] the interests of the children that IDEA was intended to protect." However, in perhaps a reflection on how his broader views on the role of the judge influence his civil rights jurisprudence, Judge Gorsuch's opinion took a different view of this argument based on perceived congressional intent, opining that the court would be substituting its view of desirable social policy for that of Congress if it were to adopt the plaintiff's proposed interpretation.

Criminal Law and Procedure

Criminal law is an area where Justice Scalia had a significant influence on the High Court's jurisprudence. Often (although not universally), he helped shape this jurisprudence in ways that could be seen to favor criminal defendants on issues such as the scope of the Fourth Amendment's protections against unreasonable searches and seizures, the Fifth Amendment's prohibition on compelled self-incrimination, and the requirements of the Sixth Amendment's Confrontation Clause. Given that more than forty percent of the cases on the Tenth Circuit's docket involve criminal law matters or petitions from federal or state prisoners, Judge Gorsuch has heard many criminal cases during his tenure on that court. He participated in notable decisions regarding searches and seizures, the exclusionary rule, ineffective assistance of counsel, and various statutory criminal law matters. However, his views on the Confrontation Clause and the scope of self-incrimination rights under the Fifth Amendment are less clear because he has not written on them to a significant extent. On the whole, though, his opinions are seemingly shaped by his views regarding how legal texts, particularly the Constitution and statutes, are to be construed, as well as his conception that the courts' role is to apply the law, rather than create it. Consequently, it would seem that Judge Gorsuch does not view the courts as being exclusively responsible for defining the playing field on which criminal suspects and the government interact in what he has described as the "constant competition between constable and quarry."

Constitutional Rules of Criminal Procedure . One aspect of Judge Gorsuch's jurisprudence that could be seen to resemble Justice Scalia's involves the Fourth Amendment. Like Justice Scalia, the nominee has taken an originalist approach to construing the Fourth Amendment's protections against unreasonable searches and seizures, focusing on how the Framers would have construed the term "unreasonable" as it is used in this context. Two notable opinions authored by Judge Gorsuch—both written in 2016—illustrate this. In one of these decisions, United States v. Carloss , Judge Gorsuch dissented from the majority's holding that federal agents did not abridge the defendant's Fourth Amendment rights when they approached the house where he was staying and knocked "for several minutes." The house had several "No Trespassing" signs posted in its yard and on its front door. However, the majority rejected the defendant's argument that these signs "revoked the implied license that the public has to approach the house and knock on the door" on the grounds that the placement of such signs around a home would not have conveyed to an objective officer that he could not knock on its door asking to speak with its residents. Judge Gorsuch disagreed. In so doing, he noted that, at the time when the Fourth Amendment was drafted, "the common law permitted government agents to enter a home or its curtilage only with the owner's permission or to execute legal process." He also observed that at common law, homeowners could generally revoke licenses to enter their property at their pleasure, and "state officials no less than private visitors could be liable for trespass when entering without the homeowner's consent."

In the second case involving the scope of the Fourth Amendment's protections against unreasonable searches and seizures, United States v. Ackerman , Judge Gorsuch wrote on behalf of a unanimous three-judge panel in holding that a government entity had conducted an impermissible search. In this case, the government had obtained one of the defendant's messages from an Internet service provider and opened the message and its accompanying attachments, thereby discovering child pornography. The government argued, among other things, that this search was permissible pursuant to the "private search doctrine," which allows a warrantless search of a person's effects that had previously been searched by a private third party. However, in his opinion, the nominee rejected this argument because the third party in Ackerman had not opened the email to view its contents, but instead had ran a search that merely identified the email as possibly containing child pornography, and forwarded the email to the government's agent. In so doing, the court noted that the "Fourth Amendment was no less protective of persons and property against governmental invasions than the common law was at the time of founding."

Another area implicating the Fourth Amendment's protections against unreasonable searches and seizures is the prohibition against the use of excessive force in the course of making an arrest, investigatory stop, or other seizure. While Judge Gorsuch frequently relied on originalist principles in other areas of search and seizure law, Supreme Court precedent appears to be the exclusive focus in his excessive force opinions. In such cases, the nominee has relied on what he views as the "relatively exacting 'objective reasonableness standard' articulated in Graham v. Connor ," which involves an examination of "three, non-exclusive factors: '[1] the severity of the crime at issue, [2] whether the suspect poses an immediate threat to the safety of the officers or others, and [3] whether he is actively resisting arrest or attempting to evade arrest by flight.'" Application of this test has led Judge Gorsuch to find both excessive force and no excessive force, depending upon his analysis of the facts of individual cases under the Graham factors.

For instance, in Herrera v. Bernalillo County Board of County Commissioners , a case where three sheriff's deputies tackled a plaintiff who was not resisting arrest, resulting in injuries to his knee, Judge Gorsuch authored a unanimous opinion affirming the district court's holding that the deputies were not entitled to qualified immunity because the law at the time of the incident clearly established that the conduct alleged was constitutionally excessive. In reaching this conclusion, the nominee proceeded through an analysis of each of the Graham factors. Similarly, but resulting in a contrary outcome, Judge Gorsuch authored the majority opinion in Wilson v. City of Lafayette , finding qualified immunity protected an officer who used a taser on an individual fleeing arrest, resulting in the suspect's death. In doing so, the nominee again recited and analyzed each of the Graham factors. Perhaps responding to concerns raised by the two other panel members in their concurring and dissenting opinions, Judge Gorsuch noted that "no one questions that the use of a taser, especially if one probe hits the head, amounts to a significant physical intrusion requiring a correspondingly significant justification." Nonetheless, the nominee found the "physical intrusion" in Wilson was not clearly established to be excessive in light of the other Graham factors, including the arrestee actively resisting arrest. And in Fisher v. City of Las Cruces , where the majority found that a material factual dispute existed as to whether the plaintiff's injuries, which he sustained while being handcuffed after he had shot himself, were sufficient for an excessive force claim, Judge Gorsuch concurred with the majority's use of the Graham factors and its conclusion that the factors suggested the officers may not have acted reasonably. In so doing, however, the nominee, noting his strict reliance on Graham in excessive force cases, faulted the majority for "tak[ing] a detour, asking whether, in addition to satisfying all three Graham factors, Mr. Fisher has also shown that he suffered a 'non- de minimis injury.'" Such an inquiry had previously been found to be required only in cases involving allegations of overly tight handcuffing, and the nominee felt that it was an inappropriate departure from Graham in this case.

On another matter of constitutional criminal procedure that has, at times, divided the Supreme Court in recent years—the application and scope of the exclusionary rule —Judge Gorsuch wrote a notable dissent in United States v. Nicholson . The issue in Nicholson was whether a police officer, who mistakenly thought the defendant had violated a local traffic ordinance, could seize evidence from the defendant's car during the resulting stop. Noting a New Mexico court ruling that had concluded that the ordinance relied on by the police officer did not provide a legal basis for the stop, the majority decision held that a failure to understand the law by the "very person charged with enforcing it" was objectively unreasonable and warranted suppression of the evidence seized. However, Judge Gorsuch in dissent rejected the view that an officer's mistake of law " always violates the Fourth Amendment." Instead, relying on the text of the Fourth Amendment and precedent emphasizing that suppression inquiries should be guided by a reasonableness inquiry, the nominee argued that, when the law at issue is "deeply ambiguous and the officer's interpretation [is] entirely reasonable," a totality of the circumstances test should counsel for not suppressing evidence seized because of a mistake of law. A year and a half after the Tenth Circuit's opinion in Nicholson , the Supreme Court effectively sided with Judge Gorsuch's more flexible view of the exclusionary rule, holding in a different case that a mistake of law can "give rise to the reasonable suspicion necessary to uphold" a traffic stop under the Fourth Amendment.

While the approach taken by Judge Gorsuch in his dissent in Nicholson eventually found favor at the Supreme Court, the nominee's dissent in a case on another often litigated issue in constitutional criminal law— ineffective assistance of counsel claims arising under the Sixth Amendment—did not ultimately become the prevailing view at the High Court. In Williams v. Jones , Judge Gorsuch served on a panel reviewing the ineffective assistance claim of a criminal defendant who, after receiving a full and fair trial, was sentenced to a harsher sentence than he otherwise would have received under an offered plea bargain. The defendant argued that his trial counsel had unduly pressured him into rejecting the plea, and a majority of the court agreed that the defendant had established that the trial counsel rendered deficient performance that prejudiced his client. Judge Gorsuch, however, dissented, arguing that there is no constitutionally protected entitlement to accept and enforce a pretrial plea offer because "due process guarantees a fair trial, not a good bargain." Three years after Williams , the Supreme Court, in a pair of 5-4 decisions for which Justice Scalia wrote dissenting opinions, held that the Sixth Amendment right to adequate assistance of counsel extends to the negotiation and consideration of plea bargains.

Statutory Claims . Judge Gorsuch generally brought the same textualist approach to statutory criminal law issues that he brought to other statutory issues, as is illustrated by his opinion on behalf of a unanimous panel of the Tenth Circuit in United States v. Dolan . At issue in this case was language in the Mandatory Victims Restoration Act stating that the "court shall set a date for the final determination of the victim's losses, not to exceed 90 days after sentencing." The defendant argued that the language was jurisdictional, which would have meant that the court lacked the authority to enter any restitution order after the 90 days had passed. However, in writing for the court, Judge Gorsuch took a contrary view, holding that the 90-day rule was a claims processing rule intended to promote speed and unconnected to the court's authority. In so doing, the nominee noted various factors, including the "statute's language and structure," as well as an interpretative canon calling for courts to construe statutes as "directory," rather than jurisdictional, if the statute prescribes a period for the performance of an official duty, but does not include language that bars performance after the specified period of time.

Although Dolan was written relatively early in Judge Gorsuch's tenure on the Tenth Circuit, it could suggest certain differences between his textualist approach and that of Justice Scalia, as the Supreme Court subsequently granted certiorari in the case. A majority of the High Court voted to affirm the Tenth Circuit's decision in Dolan . However, Justice Scalia joined a dissenting opinion authored by Chief Justice Roberts that viewed the "clear statutory text" to preclude the court from granting restitution more than 90 days after sentencing. This difference between the Tenth Circuit's textualist interpretation and that of Chief Justice Roberts seems to have been shaped primarily by the different emphases that the Tenth Circuit and the Chief Justice gave to different words in the statute, which stated that "[n]otwithstanding any other provision of law, when sentencing a defendant convicted of [a specified] offense . . ., the court shall order . . . that the defendant make restitution to the victim of the offense." In writing for the Tenth Circuit, Judge Gorsuch focused on the "notwithstanding" clause, viewing it as mandating restitution in every case, even if such restitution is not made at sentencing or within 90 days thereof. The dissenters on the High Court, in contrast, relied, at least in part, on the phrase "when sentencing," which they would have construed to mean that a district court has no power to act after sentencing except as provided in the statute, which prescribes a 90-day window for doing so.

On the question of the mens rea—or mental state—requirements of criminal statutes, Judge Gorsuch's textualist approach is sometimes said to have led to "defendant-friendly" results, as illustrated by his opinion dissenting from the denial of rehearing en banc in United States v. Games-Perez . This case centered on the question of whether federal statutes penalizing the possession of firearms by felons require the government to prove that a defendant knew of both his own status as a felon and his possession of a firearm, or whether the government needs to prove only that the defendant knowingly possessed a firearm. The longstanding Tenth Circuit precedent is that the government need only prove knowing possession of a firearm. However, in his dissent in Games-Perez , Judge Gorsuch opined that reading the mens rea element of a criminal statute as "leapfrogging over the first statutorily specified element and touching down only at the second listed element " "defies grammatical gravity and linguistic logic," among other things. Similarly, in United States v. Manatau , Judge Gorsuch, writing on behalf of a unanimous panel, relied on the plain language of sentencing guidelines to reach a more lenient interpretation of the mens rea requirement than the government had urged. The government had argued that the court should construe the term "intended loss," as used in connection with a sentencing enhancement for bank fraud and aggravated identity theft, to include any loss that the defendant " knew would result from his scheme," or that he "might have possibly and potentially contemplated." However, the court disagreed, finding that the "plain language" of the guideline was such that "intended" must be construed to refer to a loss "done on purpose." The court also noted the longstanding tradition in American criminal law of restricting liability to "cases where an intentional choice to do wrong is present." A more stringent approach to mens rea requirements, in which intention or knowledge of wrongdoing is generally construed to be part of the crime, is often associated with concerns about overcriminalization, something that Judge Gorsuch has criticized in much the same way Justice Scalia did.

Another aspect of Judge Gorsuch's approach to statutory criminal law issues that could also be seen to be "defendant-friendly"—and to resemble Justice Scalia's approach—is his resort to the rule of lenity in construing criminal statutes that are seen to be ambiguous. In its standard formulation, the rule of lenity "insists that courts side with the defendant 'when the ordinary canons of statutory construction have revealed no satisfactory construction.'" Much as Justice Scalia did, Judge Gorsuch invoked the rule of lenity in several criminal cases, including his 2015 opinion for a majority of the en banc Tenth Circuit in United States v. Rentz . Here, Judge Gorsuch invoked the rule of lenity in support of a primarily text based interpretation, asserting that "[t]o the extent any ambiguity remains at this point about the meaning of § 924(c)(1)(A)—after we have exhausted all the evidence of congressional meaning identified by the parties—we don't default to the most severe possible interpretation of the statute but to the rule of lenity." The nominee opined that invoking the rule when construing ambiguous criminal statutes helps to ensure that individuals have "fair warning" when lawmakers want to impose criminal consequences to certain conduct. He also noted that the rule promotes separation-of-powers principles by ensuring that the legislature, and not the prosecution, "decide[s] the circumstances when people may be sent to prison." Previously, in his 2014 opinion for the panel majority in United States v. Smith , Judge Gorsuch had similarly cited a separation-of-powers rationale for the rule of lenity, opining that "[i]n 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."

Environmental Law

With the Supreme Court often closely divided on various aspects of environmental law in recent years, Judge Gorsuch could serve as a critical vote on such matters if confirmed to the Court. The nominee has authored few opinions involving environmental law issues and participated in a handful of other environmental law cases while on the Tenth Circuit. The lack of a robust record for Judge Gorsuch on environmental law matters may not be surprising. The Tenth Circuit does not hear many environmental law cases because many major environmental statutes require parties challenging nationally applicable federal laws or administrative agency actions to file a petition in the D.C. Circuit. The territorial jurisdiction of the Tenth Circuit, however, does cover six western states and parts of Yellowstone National Park, which collectively contain millions of acres of land owned by the federal government. Consequently, while the nominee may not have written extensively on environmental law, Judge Gorsuch has authored or joined opinions in several cases challenging federal agency actions related to the management of federal public lands and natural resources. This constitutes the bulk of the nominee's environmental law record.

The outcome of an environmental case often depends on the court's resolution of threshold procedural issues, such as whether a plaintiff has the right to bring a lawsuit in the first place or to join an ongoing lawsuit. If such lawsuits are filed, to proceed to the merits, a plaintiff will need to establish standing, a procedural threshold that has, at times, impeded environmental litigation. While Judge Gorsuch has authored or joined opinions in a few cases involving whether an environmental group or regulated business had the right to bring or join a lawsuit challenging federal agency action, there is no discernible trend in his environmental standing jurisprudence. For example, his opinion for the majority in Backcountry Hunters & Anglers v. U.S. Forest Service provides one example of a case that was dismissed because the plaintiffs lacked standing. In this case, the plaintiffs challenged a temporary U.S. Forest Service order that allowed motorcycles—but prohibited all-terrain vehicles (ATVs)—on certain forest trails. Judge Gorsuch, writing for a unanimous court, determined that the appellants lacked a genuine stake in the outcome of the proceedings because vacating the Forest Service plan as the appellants had requested would merely reinstate the previously enacted plan, which allowed both ATVs and motorcycles on forest trails. In dismissing the case, the nominee wrote that a victory for the appellants "would seem to do nothing to help—and perhaps much to hurt—[their] cause," which was to reduce vehicles on forest trails. By contrast, Judge Gorsuch joined a majority opinion determining that an environmental group had standing to challenge the Bureau of Land Management's (BLM) interpretation of its own prior order that allowed a coal mining project to go forward in Utah's Lila Canyon. The majority opinion concluded that the environmental group would suffer injury from the company beginning mining operations by impairing "the ability of its members to continue enjoyment of the aesthetic and scientific benefits provided by the land in question." Judge Gorsuch has also authored or joined other majority opinions in a number of other cases touching upon environmental issues in which the court determined that an environmental group or regulated business had standing to sue. Nonetheless, the limited number of cases on standing in the environmental context makes it difficult to discern any broad tendencies of Judge Gorsuch on the subject.

In a related procedural matter—persons' ability to intervene in ongoing litigation—Judge Gorsuch's views are similarly unclear. While the Supreme Court itself would likely not rule on any immediate questions respecting intervention in ongoing litigation, its broader guidance on intervention could be influential to the lower courts. During the Senate's consideration of Judge Gorsuch's nomination to the Tenth Circuit, the judge responded affirmatively to a written question about whether his courtroom "would be open to intervention in litigation by those concerned with the administration of . . . public lands." He wrote that "Judges owe the same obligation of fidelity to the record and the law in all cases and to all persons appearing before them—regardless of who the litigant is or what the nature of the claim may be."

Judge Gorsuch has had limited opportunities to evaluate intervention matters in environmental cases. In 2013, he dissented from a majority opinion holding that environmental groups were entitled to intervene as of right in a lawsuit challenging a Forest Service plan that allowed for limited off-highway vehicle use in New Mexico's Santa Fe National Forest. The majority reasoned that the groups had a right to intervene because the Forest Service might not adequately represent their interests if, for example, the agency shifted policy positions in favor of the industry group plaintiff during the litigation. Judge Gorsuch dissented, arguing that the environmental groups lacked a right to intervene in the case because their interests were already adequately represented by the government, and that a shift in the Forest Service's position was "speculative." Although his dissent in Backcountry argued that the environmental groups should not have been allowed to intervene in the case, the opinion also implied that he might have voted in favor of the groups joining the litigation if the government had abandoned its efforts to enforce the law at issue.

Once a plaintiff in an environmental case has satisfied any jurisdictional and procedural requirements to bringing a lawsuit, a court might review the substance of the federal agency action at issue. Sometimes, an action by an environmental agency may be based on that agency's interpretation of a statute that it administers, such as in 2015 when EPA and the Army Corps of Engineers promulgated a rule defining the scope of waters protected under the Clean Water Act. As noted elsewhere in this report, Judge Gorsuch has broadly expressed skepticism regarding the extent to which judges should defer to an administrative agency's reasonable interpretation of silent or ambiguous language in a statute it administers. If Judge Gorsuch's views on Chevron deference were to prevail at the Court, there is some debate on what impact this would have for environmental law. On one hand, some commentators have suggested that a judge's refusal to defer to agency interpretations would impede efforts by federal agencies to regulate activities that would negatively impact the environment. However, Judge Gorsuch's reluctance to defer to agency legal interpretations, if applied consistently, could also lead to a lack of deference to agency interpretations of environmental statutes that would lead to a decrease in regulation. Given the range of environmental statutes that require the government to take an active role in environmental protection, one commentator has suggested that judicial scrutiny of agency decisions that, for example, determine whether operation of a certain type of facility is subject to Clean Water Act requirements, would not necessarily result in a legal outcome that was less protective of the environment.

Another potentially relevant issue implicated by judicial review of final agency actions regarding environmental regulations is the scrutiny courts should provide in reviewing agencies' interpretations of their own regulations, including interpretations that alter previous interpretations or findings. Applying binding precedent, Judge Gorsuch has shown some deference to agencies' interpretations of their own environmental regulations. For example, in United States v. Magnesium Corporation of America , he wrote a majority opinion upholding EPA's reinterpretation of its Resource Conservation and Recovery Act regulations governing mineral processing waste. The court upheld the reinterpretation, which subjected the wastes to more stringent management requirements, even though the agency's new interpretation conflicted with a previous "tentative" interpretation the agency had made in a report to Congress. Neither the agency's original interpretation of its regulations nor the subsequent reinterpretation was made in accordance with the APA's notice and comment rulemaking procedures. The court held that EPA was not required to provide notice and comment to change a "tentative" interpretation of its own rules. Although the decision upheld EPA's change in its interpretation of its regulations, showing some skepticism toward "agency . . . interpretative reversals," Judge Gorsuch did note potential statutory and constitutional concerns regarding agency action that would uproot nontentative interpretations of law.

Another example of Judge Gorsuch's deference to an agency's interpretation of its own environmental regulations occurred in a 2010 decision reviewing the BLM's interpretation of its own prior order that allowed a coal mining project to go forward in Utah's Lila Canyon. Judge Gorsuch joined the court's opinion deferring to BLM's interpretation of its own order. The court, citing Tenth Circuit precedent, determined that it owed deference to the Bureau's interpretation of the order because that interpretation was consistent with the circumstances surrounding the issuance of the order and the agency's subsequent conduct.

Environmental cases may also implicate other constitutional issues, including the relationship between federal and state authorities. One question that may arise is whether the Constitution's Commerce Clause should render invalid certain state environmental laws. The Supreme Court, in a series of decisions, has held that the Commerce Clause represents not only a grant of authority to Congress, but also a prohibition on states "imposing excessive burdens on interstate commerce without congressional approval." This implied "negative command" is known as the dormant or negative Commerce Clause. In Energy and Environmental Legal Institute v. Epel , Judge Gorsuch reviewed a dormant Commerce Clause challenge to Colorado's renewable energy standard (RES), which requires many electric utilities in Colorado to ensure that twenty percent of electricity sold to state consumers comes from renewable sources. Writing for the majority, Judge Gorsuch noted that Justices Scalia and Thomas had opposed the dormant Commerce Clause doctrine because they believed that it lacked a firm basis in the text and structure of the Constitution. While noting these views, Judge Gorsuch acknowledged, however, that the Tenth Circuit was bound by Supreme Court precedent on the dormant Commerce Clause doctrine. Applying this precedent, the nominee's opinion read Supreme Court precedent narrowly to uphold the Colorado law, concluding that Colorado's RES was distinguishable from analogous laws that the Supreme Court invalidated on dormant Commerce Clause grounds. Judge Gorsuch's opinion in this case—and, in particular, his discussion of arguments made by Justices who have opposed the doctrine—suggests that, if confirmed to the Court, he might be willing to entertain arguments opposing the Court's use of the dormant Commerce Clause doctrine to strike down state environmental laws.

Federalism

During his tenure on the Court, Justice Scalia viewed federalism—the legal principles governing the division of power between the states and the national government—to be "one of the Constitution's structural protections of liberty," and he authored or joined a host of key opinions delineating the limits of federal power. By contrast, during his tenure on the Tenth Circuit, Judge Gorsuch has addressed issues of federalism and the scope of congressional power vis-à-vis the states only in a limited number of cases. In many key areas of the law related to issues of federalism—such as the scope of Congress's affirmative powers under the Commerce Clause or the limits imposed by the Tenth Amendment—he has written little. Thus, gleaning any general trends respecting the nominee's views in this area of law is difficult, particularly because it is unclear to what degree the nominee's conclusions reflect his own approach to federalism questions, or what he perceives as adherence to Supreme Court precedent. In general, however, in cases implicating federalism concerns, Judge Gorsuch has exhibited respect for state court decisions, interpretations, and rules, and has expressed clear views in support of abstention, the concept of a cooperative federalism, and the practice of federal courts certifying some questions of state laws to state courts.

Judge Gorsuch's general respect for the decisions, interpretations, and rules of state courts is evident in the majority and concurring opinions in Browder v. City of Albuquerque , both of which he drafted. This case involved a claim against an off-duty police officer who killed one person and injured another while speeding through a red light. Although Judge Gorsuch affirmed the district court's denial of qualified immunity for the police officer in his majority opinion, he wrote separately to explain his views on when federal courts should abstain, for reasons of federalism, from deciding cases where state courts are able to vindicate rights adequately:

To entertain cases like this in federal court as a matter of routine risks inviting precisely the sort of regime the Supreme Court has long warned against—one in which "any party who is involved in nothing more than an automobile accident with a state official could allege a constitutional violation" in federal court and thus "make of the Fourteenth Amendment a font of tort law" needlessly superimposed on perfectly adequate existing state tort law systems.

While abstention was not properly raised by the parties in Browder , Judge Gorsuch opined in his concurrence that "when the issue is raised in appropriate future cases, I believe we would do well to consider closely its invitation to restore the balance between state and federal courts. For we should be able to expect both that justice will be done in cases like this one and that it will be done while exhibiting the sort of cooperative federalism that has traditionally defined our law."

The nominee's respect for state court decisions and interpretations—which appears to be grounded in his support for the broader concept of a cooperative federalism between state and federal courts—figures prominently elsewhere in his federalism jurisprudence, particularly with regard to habeas petitions lodged by state prisoners. Such themes are evident in his dissent from a denial of a request for a rehearing en banc in Williams v. Jones . In that case, the majority declined to review a panel opinion that required a district court to craft a remedy for what the panel determined to have been ineffective assistance of counsel during plea negotiations in a criminal case. In his dissent, Judge Gorsuch asserted that the panel's "holding represents a significant new federal intrusion into state judicial functions and a revamping of the separation of powers, one that unsurprisingly conflicts with the decisions of a number of other courts, including the Utah Supreme Court." In another habeas case, Wood v. Milyard , while the nominee's unanimous opinion held that a state procedural default did not bar federal habeas review, he noted that federal courts must respect state court rules when appropriate, stating: "As a matter of comity and federalism, . . . we will usually hold our tongues about any potential federal law violation lurking in the background of a state procedural default."

While Judge Gorsuch has identified circumstances in which he believes deference to state courts is not only appropriate, but also vital to a system of cooperative federalism, he has also recognized limits to such deference, particularly when the actions of a state or its subdivisions are in clear conflict with federal court judgments. For example, in Ute Indian Tribe of the Uintah & Ouray Reservation v. Utah , the nominee wrote a unanimous opinion that granted an injunction preventing state and county officials from prosecuting Indian tribe members for crimes committed on tribal land. In that case, the tribe had prevailed in federal court four decades earlier on its claims that Utah and several local governments were unlawfully trying to displace tribal authority through such prosecutions. While Judge Gorsuch acknowledged that the federal Anti-Injunction Act "usually precludes federal courts from enjoining ongoing state court proceedings" "out of respect for comity and federalism," he relied upon "an important exception . . . [that] expressly authorizes federal courts to enjoin state proceedings when it's necessary 'to protect or effectuate' a previous federal judgment." Thus, one discernible limit on the nominee's general deference to state courts is the need for finality in federal court judgments. In reaching this conclusion, however, Judge Gorsuch emphasized comity and cooperative federalism, stating: "Though we are mindful of the importance of comity and cooperative federalism and keenly sensitive to our duty to provide appropriate respect for and deference to state proceedings, we are equally aware of our obligation to defend the law's promise of finality."

Related to his views on comity and cooperative federalism is Judge Gorsuch's seeming preference to have state courts decide certain novel matters of state law, as evidenced by a number of opinions in which he certified such questions to state courts. In Pino v. United States , Judge Gorsuch laid out certain principles to guide the determination of when certification is appropriate, which he then relied upon in several subsequent cases: "While we apply judgment and restraint before certifying, . . . we will nonetheless employ the device in circumstances where the question before us (1) may be determinative of the case at hand and (2) is sufficiently novel that we feel uncomfortable attempting to decide it without further guidance." In articulating these principles, the nominee emphasized that "[i]n making the assessment whether to certify, we also seek to give meaning and respect to the federal character of our judicial system, recognizing that the judicial policy of a state should be decided when possible by state, not federal, courts." Judge Gorsuch's preference for leaving novel questions of state law to the state courts also informed a dissent he authored in a habeas case. In Wilson v. Workman , the nominee faulted the majority for "ventur[ing] a guess about the meaning of state law" and asserted that "[a]sking the [state court] to interpret its own rule . . . would have had the benefit . . . of 'help[ing] build a cooperative federalism' by 'giv[ing] meaning and respect to the federal character of our judicial system.'" As is evident, at the center of Judge Gorsuch's argument for sending questions of state law to the state is "certification's useful role in promoting a cooperative federalism."

A related aspect of federalism is the doctrine of state sovereign immunity, which the Supreme Court has recognized underlies the Eleventh Amendment, and is a fundamental aspect of sovereignty retained by the states under the federal system established by the Constitution. While Judge Gorsuch has had few occasions to address this aspect of federalism, in Hill v. Kemp , he wrote a unanimous opinion reversing a district court's dismissal of certain counts against a state official on Eleventh Amendment grounds. In reaching this outcome, the nominee reviewed extensively the Supreme Court's Eleventh Amendment jurisprudence. Namely, Judge Gorsuch described Hans v. Louisiana , which interpreted the Amendment as precluding suits by citizens in federal court against their own states, and Ex parte Young , which specified circumstances under which the Amendment does not bar suits against a state—namely, when the suit seeks only declaratory and injunctive relief rather than monetary damages and is brought against state officers acting in their official capacities, rather than against the state itself. In reviewing further additions to the "rococo quality" of this Eleventh Amendment jurisprudence, Judge Gorsuch noted that "the Supreme Court has in recent years added a new gloss on Young 's gloss on Hans 's gloss on the Eleventh Amendment," perhaps suggesting frustration over the nature of the Court's jurisprudence in this area. Ultimately, however, he found the case could be decided on the sole question of whether the relief was prospective in nature. Having found that it was, Judge Gorsuch concluded that the case fell "within the scope of Ex parte Young and was not barred by the Eleventh Amendment."

Of the various federalism cases interpreting the scope of federal powers granted by the Constitution, perhaps Judge Gorsuch's most telling writings have been with respect to the dormant Commerce Clause. In this area, the nominee's clear views appear to align closely with those of Justice Scalia, who wrote in one case that "[t]he fundamental problem with our negative Commerce Clause cases is that the Constitution does not contain a negative Commerce Clause," characterizing the doctrine as a "judicial fraud" and a "judge-invented rule." Similarly, Judge Gorsuch's misgivings about the dormant Commerce Clause are expressed perhaps most clearly in his unanimous opinion in Energy & Env ironmen t Legal Inst itute v. Epel , where he described the doctrine as "another pocket of federal jurisprudence characterized by a long and evolving history of almost common-law-like judicial decision making." In recounting the development of dormant Commerce Clause jurisprudence, the nominee stated in a seemingly skeptical tone:

Most everyone accepts that [the Commerce Clause] grants Congress authority to pass laws concerning interstate commerce and to direct courts to disregard state laws that impede its own. Yet some see even more than that here. For many years . . . the Supreme Court has read the clause as embodying a sort of judicial free trade policy. Employing what's sometimes called "dormant" or "negative" commerce clause jurisprudence, judges have claimed the authority to strike down state laws that, in their judgment, unduly interfere with interstate commerce. Detractors find dormant commerce clause doctrine absent from the Constitution's text and incompatible with its structure.

He went on to note, however, that "as an inferior court we take Supreme Court precedent as we find it and dormant commerce clause jurisprudence remains very much alive today."

In Epel , Judge Gorsuch ultimately upheld a state law that required electricity generators to ensure that twenty percent of electricity sold to state consumers came from renewable resources. This conclusion was based on a strict reading of one line of dormant Commerce Clause cases—those falling under Baldwin v. G.A.F. Seelig, Inc. —which he described as "the most dormant doctrine in dormant commerce clause jurisprudence." Reading the principles of the Baldwin cases narrowly, Judge Gorsuch concluded that the dormant Commerce Clause was not implicated in this case because the state law at issue "doesn't share any of the three essential characteristics that mark those cases: it isn't a price control statute, it doesn't link prices paid in Colorado with those paid out of state, and it does not discriminate against out-of-staters." Although it is difficult to divine broad conclusions from this one case, Judge Gorsuch's opinion suggests a skeptical reading of the dormant Commerce Clause and an interest in cabining the doctrine to the facts of previous cases.

These views were also apparent in the concurring opinion Judge Gorsuch authored in Direct Marketing Association v. Brohl , which held that a state law imposing a notice and reporting obligation on out-of-state retailers that are not required to collect sales tax did not discriminate against or unduly burden interstate commerce, and therefore satisfied dormant Commerce Clause concerns. In concurring, Judge Gorsuch summarized his views on the dormant Commerce Clause in a statement reminiscent of those of Justice Scalia:

At the center of this appeal is a claim about the power of precedent. In fact, the whole field in which we are asked to operate today—dormant commerce clause doctrine—might be said to be an artifact of judicial precedent. After all, the Commerce Clause is found in Article I of the Constitution and it grants Congress the authority to adopt laws regulating interstate commerce. Meanwhile, in dormant commerce clause cases Article III courts have claimed the (anything but dormant) power to strike down some state laws even in the absence of congressional direction.

While Judge Gorsuch's distinct views on the dormant Commerce Clause seem clear, the limited number of cases in which the nominee has ruled on other aspects of federalism and the scope of federal power vis-à-vis the states makes it difficult to conclude with certainty that he would, if confirmed to the Supreme Court, be as receptive to federalism based arguments as was Justice Scalia. What is apparent, however, is his clear interest in upholding the "essential principles of federal-state comity" in furtherance of a cooperative federalism by deferring to the states when circumstances so warrant.

Freedom of Religion

Judge Gorsuch could, if confirmed to the Supreme Court, have a significant influence on the jurisprudence regarding freedom of religion—an area of law that, at its core, encompasses certain constitutional protections, as well as statutory free exercise protections that augment these constitutional standards. In recent years, the Court has taken up a number of religious freedom cases, with Justice Scalia voting as part of five-Justice majorities to interpret more narrowly the Constitution's prohibition on the "establishment of religion," while joining the same voting block to more expansively interpret statutory free exercise protections. In contrast to other areas of law, where Judge Gorsuch's views remain uncertain, freedom of religion is a subject on which the nominee has expressed fairly clear views, writing or joining several notable opinions during his time on the Tenth Circuit.

Establishment Clause. A central constitutional issue respecting freedom of religion that Judge Gorsuch has considered concerns the reach of the First Amendment's prohibition on the establishment of a national religion, a restriction the High Court has, at times, read to bar certain government actions that endorse religion. In determining what constitutes an unconstitutional endorsement of religion, the Court has in the recent past adopted Justice Sandra Day O'Connor's "reasonable observer test," which looks to whether an "objective observer," acquainted with the background of the challenged government action, would perceive it as a government endorsement of religion. However, paralleling some of Justice Scalia's views on the Establishment Clause, Judge Gorsuch has, in two dissents, criticized what he viewed as overly expansive interpretations of the reasonable observer test on the grounds that these interpretations needlessly eliminate certain religious symbols and traditions from the public sphere.

First, in Green v. Haskell County Board of Commissioners , Judge Gorsuch dissented from the denial of a request for rehearing in a case where the panel had previously enjoined a display of the Ten Commandments—which had been donated to the county—alongside other secular symbols on a courthouse lawn. In his dissent, the nominee criticized the Tenth Circuit's formulation of the reasonable observer test, describing the observer utilized by the panel decision as an " unreasonable one" who "gets things wrong." Judge Gorsuch's dissent noted a number of perceived errors made by the "unreasonable observer," which included confusing the donor's intent with the government's message and equating silence by the government with endorsement. Contending that "like cases should be treated alike," Judge Gorsuch's dissent further argued that the county's "inclusive display" of the Ten Commandments was indistinguishable from the display at issue in Van Orden v. Perry . In that case, the Supreme Court had upheld a display of the decalogue among other monuments and historic markers on the grounds of the Texas state capitol. Given these perceived parallels between Green and Van Orden , the nominee's dissent concluded by noting the "long" custom of displaying the Ten Commandments in public places and arguing that the Tenth Circuit should reevaluate whether the endorsement test even applies to the dispute. Judge Gorsuch's dissent is reminiscent of recent Supreme Court jurisprudence, where a majority of the Justices, including Justice Scalia, appeared to move from the endorsement test to looking to historical practices and understandings to resolve Establishment Clause disputes.

Nearly two years after Green , Judge Gorsuch similarly dissented from an order denying en banc rehearing in American Atheists, Inc. v. Davenport . In that case, the panel had relied on the reasonable observer test in holding that the display of twelve-foot high crosses on public lands to memorialize fallen Utah Highway Patrol troopers violated the Establishment Clause. Echoing his dissent in Green , Judge Gorsuch again raised concerns about the Tenth Circuit's interpretation of Justice O'Connor's test, arguing that "our observer continues to be biased, replete with foibles, and prone to mistake." In particular, the dissent criticized what the nominee viewed as the observer's (1) "biased presumption that the Utah roadside crosses are unconstitutional"; (2) "internal bias" that disregarded "secularizing details" about the cross display; and (3) "selective and feeble eyesight," which resulted in misperceptions about the nature of the cross display. In this sense, Judge Gorsuch viewed the panel decision in American Atheists as merely replicating the errors from Green , stating: "[W]e will strike down laws other courts would uphold, and do so whenever a reasonably biased, impaired, and distracted viewer might confuse them for an endorsement of religion."

More generally, Judge Gorsuch's dissent pointedly criticized the concept of the reasonable observer on the grounds that this test differs from other formulations the Court has used in the Establishment Clause context in that it could be used "to strike down laws and policies a conjured observer could mistakenly think respect an establishment of religion." Judge Gorsuch's dissent in American Atheists , like his dissent in Green , expressed skepticism regarding interpretations of the First Amendment that discourage accommodation for religious views. Instead, he appears to favor an approach that is more restrained in using the power of judicial review in Establishment Clause cases.

Statutory Free Exercise Claims . Judge Gorsuch's most notable writings on freedom of religion may arise in the context of statutory free exercise claims. In two cases subsequently reviewed by the Supreme Court, the nominee authored or joined opinions involving challenges under the Religious Freedom Restoration Act (RFRA) to the contraceptive coverage requirement in the Affordable Care Act (ACA). RFRA provides that federal laws that substantially burden a person's exercise of religion are permissible only if they are the least restrictive means of furthering a compelling governmental interest.

In the Tenth Circuit's 2013 en banc decision in Hobby Lobby v. Sebelius , Judge Gorsuch joined the lead opinion of Judge Timothy Tymkovich and wrote a separate concurrence. In Hobby Lobby , two closely held corporations, whose owners chose to "run their business to reflect their religious values," challenged the contraceptive requirement, arguing that it violated their religious beliefs for their businesses to "facilitate any act that causes the death of a human embryo." The opinion for the majority of the Tenth Circuit concluded that the ACA contraceptive coverage requirement likely created a substantial burden on the organization's free exercise rights and was not the "least restrictive means" to justify a "compelling governmental interest." In so holding, the Tenth Circuit deferred to the plaintiff's conception of its religious beliefs, and, viewing the dilemma posed by the contraceptive policy as a "Hobson's choice" in which the corporations and its owners could pay substantial fines for violating the requirement or "compromise their religious beliefs," concluded that the policy amounted to a substantial burden. While acknowledging the "importance" of the government's proffered compelling interests in promoting public health and gender equality, Judge Tymkovich's opinion concluded that the existence of a wide range of exemptions to the requirement undermined the government's justifications for the policy and demonstrated that the policy was not the least restrictive means of achieving these goals. On appeal to the Supreme Court, a five-Justice majority (including Justice Scalia) largely agreed with the Tenth Circuit's assessment and affirmed the lower court.

Judge Gorsuch's concurring opinion in Hobby Lobby , while centrally focused on procedural matters tangential to the RFRA claims, did discuss the substantive claims in broader terms than the majority opinion, suggesting that the nominee may have a clear preference for accommodation in free exercise disputes. Noting that RFRA was enacted for the express purpose of "vindicating this nation's long-held aspiration to serve as a refuge of religious tolerance," Judge Gorsuch's concurrence emphasized that courts should largely defer to the assertions about the nature of religious beliefs made by those who sincerely hold these beliefs, both out of respect for religious liberty and because of the judiciary's limited competence to scrutinize the veracity of such beliefs. Judge Gorsuch emphasized that it made little difference that the burden on the plaintiffs in Hobby Lobby did not stem from the government affirmatively requiring their use of a "particular drug or device." This was because the plaintiffs had argued that the government imposed a religious burden by requiring their " personal involvement in facilitating . . . [the destruction of] a fertilized human egg that their religious faith holds impermissible," a "matter of faith" that, in the nominee's view, the court "must respect." As a result, Judge Gorsuch's Hobby Lobby concurrence viewed RFRA as a "tie-breaker" that Congress designed to "override other legal mandates, including its own statutes, if and when they encroach on religious liberty."

Two years later, Judge Gorsuch joined an opinion in Little Sisters of the Poor v. Burwell that repeated many of the themes of his Hobby Lobby concurrence. Little Sisters of the Poor involved a corollary issue to the one raised in the earlier litigation. Specifically, the central issue in Little Sisters of the Poor was whether allowing religious entities that objected to the ACA requirement to fill out a form that would functionally require a third-party insurer to provide the coverage violates the free exercise rights of those religious entities. Judge Harris Hartz, joined by four other judges, including Judge Gorsuch, dissented from the decision not to rehear a case dismissing a challenge to this government accommodation policy. In particular, Judge Hartz's opinion criticized the panel's refusal "to acknowledge that [the plaintiff's] religious belief is that execution of the [accommodation] documents is sinful," arguing that the panel decision had "reframe[d]" and minimized the plaintiffs' religious objections. In so doing, the dissent in Little Sisters of the Poor can be seen to have repeated many of the themes from Judge Gorsuch's Hobby Lobby concurrence by describing the majority approach as "dangerous . . . to religious liberty" because it is "not the job of the judiciary to tell people what their religious beliefs are." On appeal, the High Court agreed to hear multiple lower court decisions on this issue, and in the consolidated case, Zubik v. Burwell , ordered the respective circuit courts to reconsider the cases after affording the parties time to reach a compromise that would provide contraceptive coverage without imposing the alleged burden on the challenging entities. The High Court's action was seen as unusual in that the opinion did not formally adjudicate the underlying dispute, perhaps reflecting the close division of the current Court on free exercise matters.

Outside of litigation over the ACA's contraceptive requirement, Judge Gorsuch has emphasized the importance of accommodating religious beliefs in other statutory free exercise challenges, especially in the context of prison litigation brought under the Religious Land Use and Institutionalized Persons Act (RLUIPA), a statute that imposes the same burden RFRA imposes for the federal government on certain state entities, like prisons. For instance, in Yellowbear v. Lambert , Judge Gorsuch, writing on behalf of a three-judge panel, held that a Wyoming prison lacked a sufficiently compelling interest in imposing a substantial burden on the religious exercise of an inmate who was an enrolled member of the Northern Arapaho Tribe and sought access to a sweat lodge to practice his religious beliefs. In so doing, the nominee articulated two relatively pro-plaintiff interpretations of free exercise law, (1) noting the "modest" task of the court in determining a claimant's sincerity; and (2) rejecting a conception of the compelling interest inquiry that would allow the government to rely on abstract interests to satisfy its burden under RLUIPA. Similarly, in Abdulhaseeb v. Calbone , Judge Gorsuch joined the majority opinion and authored a concurring opinion reinstating several RLUIPA claims based on an Oklahoma prison's denial of an Islamic prisoner's request for a halal certified diet. In his concurrence, the nominee emphasized that the inmate's charge was that he was denied "all means of accessing food [that] he can eat consistent with his . . . sincerely held religious beliefs," "effectively forcing him to choose between remaining pious or starving," a claim that "lies at [the] heart" of a statutory free exercise claim.

Nonetheless, while Judge Gorsuch's opinions on statutory free exercise claims are solicitous of religious accommodation, there appear to be some limits on how far statutory free exercise protections extend in his view. For example, the nominee's concurrence in Abdulhaseeb rejected the prisoner's other claims, including the claim that the prison had violated his rights under RLUIPA merely by placing "jell-o and pudding" on the prisoner's cafeteria tray. More broadly, while acknowledging that laws like RFRA and RLUIPA are "super statute[s]," "capable of mowing down inconsistent" laws, Judge Gorsuch noted that for a plaintiff "to win" under the law "takes no small effort," and such laws do "not offer refuge to canny operators who seek through subterfuge to avoid laws they'd prefer to ignore." Seemingly consistent with this view, in one case, United States v. Quaintance , Judge Gorsuch, writing on behalf of a unanimous panel, rejected the argument that RFRA barred the prosecution of members of a marijuana distribution conspiracy who claimed that the use of the drug was central to the exercise of their newly created religion, which taught that "marijuana was a deity and sacrament." Accordingly, while Judge Gorsuch is apt to interpret statutory free exercise laws, much like the Establishment Clause, to embrace the role of religion in society, there are limits to the degree to which he will defer to the purported interests suggested by claimants seeking to rely upon such laws.

Freedom of Speech

The Supreme Court has issued a number of notable opinions over the past decade respecting the First Amendment and freedom of speech, with some legal scholars and practitioners going so far as to describe the Roberts Court as the "strongest First Amendment Supreme Court in our history." Many of the Court's recent First Amendment rulings have been closely divided, and the eight-member Court split evenly during the October 2015 term on a notable case regarding the First Amendment and public employee unions. Given this, Judge Gorsuch could, if confirmed by the Senate, have a significant influence on the future direction of free speech law. The nominee has authored or joined a handful of opinions touching on free speech issues, providing a limited picture of how Judge Gorsuch views the First Amendment.

Judge Gorsuch's work on the Tenth Circuit has broached the issue of campaign finance regulation and the First Amendment—an area where a divided Supreme Court has invalidated a number of federal and state election laws —at the margins. For example, in the en banc ruling in Hobby Lobby v. Sebelius , Judge Gorsuch joined the majority opinion that concluded that the "logic" of Citizens United v. FEC —the 2010 Supreme Court ruling that, in relevant part, stated that "First Amendment protection extends to Corporations" —compelled the conclusion that the First Amendment also protects a corporation's religious expressions. While various commentators have suggested the Hobby Lobby decision signals Judge Gorsuch's broader support for decisions like Citizens United , a lower court's reliance on Supreme Court precedent may not necessarily signal agreement with that precedent. More specifically, as noted by one of the concurring opinions in Hobby Lobby , the disagreement between the members of the Court in Citizens United was more complex than whether the First Amendment protects a corporation's speech, and centered on whether the "asserted inclinations and advantages of corporations in corrupting officeholders" justified restricting corporate campaign expenditures. In other words, Judge Gorsuch's vote in the 2013 en banc case may have limited significance with respect to his broader views on the constitutionality of campaign finance laws.

Perhaps more insights as to Judge Gorsuch's views on the First Amendment and campaign finance regulation come from Riddle v. Hickenlooper , a 2014 case that invalidated a Colorado law allowing major party candidates to accept twice as much in contributions per individual as independent and minor party candidates. Concurring in Riddle , Judge Gorsuch agreed with the majority that the Colorado law violated the Equal Protection Clause of the Fourteenth Amendment because the law sprang from a "bald desire to help major party candidates at the expense of minor party candidates." Moreover, Judge Gorsuch's opinion attempted to allay fears that the ruling "imperiled" any attempts to regulate campaign contributions, citing federal law as a nondiscriminatory model available to the State of Colorado. In so concluding, however, the concurrence broadly noted that the "act of contributing to political campaigns implicates a 'basic constitutional freedom,' one lying 'at the foundation of a free society' and enjoying a significant relationship to the right to speak and associate—both expressly protected First Amendment activities." The nominee then observed that despite the First Amendment interests in campaign contributions, the Supreme Court "has yet to apply strict scrutiny to contribution limit challenges." While Judge Gorsuch's concurrence in Riddle does not go so far as to argue explicitly for subjecting contribution limits to strict scrutiny, it does cite to Justices who have made such an argument in the past, prompting some commentators to conclude that the nominee may favor subjecting campaign finance restrictions, including contribution restrictions, to the most stringent standard of review. On the other hand, other legal scholars have read Judge Gorsuch's opinion in Riddle to "simply highlight[] the confusion he saw" in the Supreme Court jurisprudence on the proper level of scrutiny to be afforded campaign contributions. At the very least, the Riddle concurrence's language, respecting the First Amendment interests implicated by the act of contributing to a political campaign, may signal that Judge Gorsuch disagrees with retired Justice John Paul Stevens's position that "money . . . is not speech."

Beyond the context of campaign finance regulation, Judge Gorsuch has written or joined a number of opinions that view the First Amendment as an important restriction on government activity. For instance, in Van Deelan v. Johnson , a case centering on the First Amendment's Petition Clause, Judge Gorsuch, writing for a three-judge panel, reversed a district court's dismissal of a claim that several county officials had violated the plaintiff's First Amendment rights by "seeking to threaten and intimidate him into dropping various tax assessment challenges." In a particularly pointed passage in Van Deelan , Judge Gorsuch wrote broadly about the underlying dangers of suppression of speech by government officials:

When public officials feel free to wield the powers of their office as weapons against those who question their decisions, they do damage not merely to the citizen in their sights but also to the First Amendment liberties and the promise of equal treatment essential to the continuity of our democratic enterprise.

With this backdrop, the nominee rejected the county's argument that the plaintiff's tax assessment challenges did not amount to "constitutionally protected activity" because they were not a matter of "public concern," concluding that the First Amendment "extends to matters great and small, public and private." The Van Deelan decision and Judge Gorsuch's reluctance to distinguish between types of speech protected by the Constitution may align him with the majority of the Roberts Court that has, in recent years, rejected the argument that the First Amendment does not protect certain "low value" speech.

In addition to Van Deelan , Judge Gorsuch has written or joined a number of opinions that promote the rights of the press at the expense of plaintiffs in certain state tort actions. For example, in Bustos v. A&E Television Network , Judge Gorsuch wrote an opinion holding that a prisoner who "merely conspired with" the Aryan Brotherhood could not sustain a defamation lawsuit resulting from a History Channel television series describing the plaintiff as a member of that gang. Noting that the First Amendment requires a plaintiff pursuing a defamation claim to prove the underlying falsehood of the statement at issue, the Bustos decision held that the plaintiff had failed to show the History Channel's statement had a significant impact on his reputation. Likewise, Judge Gorsuch joined a panel opinion in Cory v. Allstate Insurance , which dismissed a defamation lawsuit on the ground that "minor inaccuracies will not preclude" the defense of substantial truthfulness. Similarly, in two other cases brought against television stations— Anderson v. Suiters and Alvarado v. KOB-TV, L.L.C. —Judge Gorsuch joined opinions that dismissed privacy tort claims on First Amendment grounds, reasoning that the underlying reported events involved protected speech on matters of public concern.

Nonetheless, the nominee should not be viewed as a free speech absolutist, as a number of Judge Gorsuch's opinions have recognized limits to the First Amendment's speech protections. For example, in Mink v. Knox— a 2010 case that concluded that the First Amendment precludes defamation actions aimed at parody, even when involving a private figure on a matter of private concern — Judge Gorsuch authored a concurring opinion that raised (without answering) the question of whether constitutionalizing the protections for such parodies was necessary or wise. In the context of public employee speech, the nominee has authored several opinions limiting or dismissing First Amendment lawsuits brought by government employees against their employers on the grounds that the speech occurred pursuant to the employees' official duties and, therefore, could be regulated by the government. With regard to challenges to zoning ordinances targeting adult bookstores, another area of First Amendment law that has divided the Supreme Court, Judge Gorsuch dissented from the denial of a petition for en banc rehearing. In so doing, he contended that the underlying panel decision interpreted the First Amendment too broadly and "set[] a new and much higher burden for municipalities" that made it harder to regulate the secondary effects of adult businesses. And, in a case raising issues similar to those in a case presently before the Court, Judge Gorsuch, in Doe v. Shurtleff , joined an opinion holding that a Utah law requiring registered sex offenders to provide the government with their usernames and online identifiers for certain websites was a permissible content-neutral regulation of speech.

International and Foreign Law

Justice Scalia's written work and public speeches reflected distinct attitudes toward the use of contemporary foreign law and practice, ratified treaties, and international custom to inform understanding of the U.S. Constitution and federal statutes. In contrast, due in part to the nature of the Tenth Circuit's docket, Judge Gorsuch's jurisprudence offers comparatively little guidance as to his likely approach on such matters if appointed to the Supreme Court. While the originalist judicial philosophy ascribed to Judge Gorsuch would arguably lead him, like Justice Scalia, to eschew consideration of contemporary foreign practice as an aid to interpreting the Constitution's meaning, the nominee has not addressed such matters in the cases that have come before him. The Tenth Circuit docket involves few cases touching upon international law issues, and the handful of cases considered by Judge Gorsuch in this area has been unremarkable. In short, if Judge Gorsuch has any distinctive leanings with respect to questions regarding the interpretation or enforceability of international law in U.S. courts, or whether foreign law has any bearing on U.S. law, they are not apparent in his judicial writings to date.

Right to Bear Arms

Judge Gorsuch has touched upon the Second Amendment and the constitutionality of firearms regulations briefly in his written opinions while on the Tenth Circuit. These writings suggest that Judge Gorsuch views the Second Amendment as generally protecting an individual right to bear arms, a position that could be seen as consistent with the originalist approach often ascribed to him. However, none of these cases purported to explore the scope of the Second Amendment's protections or the Supreme Court's decisions in District of Columbia v. Heller and McDonald v. City of Chicago , two challenges to firearms restrictions in which Justice Scalia notably participated during his time on the High Court.

Judge Gorsuch's references to the Second Amendment have generally appeared in cases concerned with how to construe federal criminal statutes. The most notable of these was arguably Judge Gorsuch's dissent from the Tenth Circuit's denial of en banc review in United States v. Games-Perez . At issue in that case was whether federal statutes penalizing the possession of firearms by felons require the government to prove that a defendant knew of both his own status as a felon and his possession of a firearm, or whether the government needs to prove only that the defendant knowingly possessed a firearm. The longstanding Tenth Circuit precedent is that the government need only prove knowing possession of a firearm. However, in dissenting from the denial of en banc review in Games-Perez , Judge Gorsuch called for the Tenth Circuit to overrule this precedent because of the specific statutory language in question, as well as the general presumption that the mens rea—or mental state—requirements of criminal statutes apply to all elements of the crime. It was in discussing these mental state requirements that Judge Gorsuch mentioned the Second Amendment, noting that "gun possession is often lawful and sometimes even protected as a matter of constitutional right." In particular, he viewed the fact that gun possession can be lawful and constitutionally protected as weighing in favor of requiring the government to prove that the defendant knew of his status as a felon because the " only statutory element separating innocent (even constitutionally protected) gun possession from criminal conduct in [the statutory provisions in question] is a prior felony conviction."

Judge Gorsuch made similar statements about gun possession being "often lawful" and a "matter of constitutional right" in subsequent decisions, including his 2015 opinion for the majority of the en banc Tenth Circuit in United States v. Rentz . Like Games-Perez , the Rentz case was concerned with how to interpret a federal criminal statute related to firearms, Section 924(c) of Title 18 of the U.S. Code which imposes "heightened penalties on those who use[, carry, or possess] guns to commit violent crimes or drug offenses." Judge Gorsuch's opinion, which primarily centered on a text-based interpretation of the statute, also suggested that his interpretation was consistent with constitutional requirements. Specifically, the statutory provision in question could not be reasonably construed to prohibit using, carrying, or possessing a gun per se, "for guns often may be lawfully used, carried, or possessed: the Constitution guarantees as much." Judge Gorsuch's opinions could, in part, be seen to reflect or even expand on the precedent of the Supreme Court's decision in Heller , which his opinions have (although not universally) cited.

Other opinions authored by Judge Gorsuch, though, suggest potential openness to at least certain restrictions on firearms possession, consistent with the widely cited dictum in Heller that "nothing in [the Supreme Court's] opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms." Judge Gorsuch has quoted or otherwise noted Heller 's language about restrictions on the possession of firearms by felons, in particular, in several decisions, including his 2010 opinion for a unanimous three-judge panel in United States v. Pope , which ultimately was resolved on procedural grounds. Other opinions authored by Judge Gorsuch include similar language. In a few cases, such as Pope , the opinions cite to other judges who have taken a different view of Heller 's dictum, at least in particular contexts. However, these citations by Judge Gorsuch may be intended to signal awareness of these judges' arguments, rather than agreement with them.

The remaining mentions of firearms in Judge Gorsuch's opinions arise in contexts that do not directly raise Second Amendment claims, and the outcomes in these cases could be seen to reflect other factors beyond the nominee's views about gun possession and the scope of the Second Amendment. For example, in one case, Judge Gorsuch authored a unanimous opinion rejecting a necessity defense to a federal gun charge as a matter of law. In another case, he joined a unanimous opinion authored by another judge concluding that law enforcement did not violate the Fourth Amendment rights of a defendant carrying a concealed handgun when the officers subjected the defendant to an investigative detention and weapons seizure. The law of the state in question exempted persons with valid licenses to carry concealed weapons, among others, from its general prohibition upon carrying loaded firearms in public. However, in the Tenth Circuit's view, the existence of this exemption did not negate law enforcement's reasonable suspicion, at the time when the defendant was detained, that the defendant's possession of the firearm was unlawful. Accordingly, law enforcement had "no affirmative obligation prior to seizing Defendant—at the risk of harm to [themselves] and others—to inquire of [the defendant] whether his possession of the handgun fell within the classes excepted by the statute."

Separation of Powers

With respect to Separation of Powers, the Tenth Circuit docket does not appear to have afforded Judge Gorsuch an opportunity to evaluate any rifts between the President and Congress involving the allocation of war powers or executive claims of exclusivity in the conduct of foreign affairs, for example. But a review of his written opinions suggests misgivings when Congress assigns legislative or judicial responsibilities to be carried out by the executive branch. Specifically, his writings indicate he is a proponent of reinvigorating the non-delegation doctrine to police overly broad statutory delegations of legislative functions to the other branches. Judge Gorsuch has objected to what he views as Congress foisting legislative authority onto the judiciary. For example, he seems to view vagueness problems with criminal statutes at least partially through a separation-of-powers lens. Accordingly, he has noted that vague criminal statutes invite the judiciary to legislate:

Not incidentally, vague laws also pose a danger to separation of powers: "if the legislature could set a net large enough to catch all possible offenders, and leave it to the courts to step inside and say who could be rightfully detained, and who should be set at large[, t]his would, to some extent, substitute the judicial for the legislative department of government."

His writings from the bench suggest he prefers to apply what scholars frequently term a "formalist" approach to separation of powers—an evaluation of strict delineations of governmental powers set forth in the Constitution—to resolve disputes between and among the branches. Based on these writings, if elevated to the Supreme Court, Judge Gorsuch could be expected to reject "functionalist" approaches that weigh the extent to which a challenged law or action upsets the equilibrium of powers the Framers hoped to achieve. His formalist approach seems to guide his views on both the limited and exclusive nature of judicial power, which are informed by the structure of the Constitution. For example, he wrote the panel opinion in Loveridge v. Hall overturning a district court decision allowing malpractice and breach of fiduciary duty claims to be resolved in a non-Article III bankruptcy court without the consent of the parties. Judge Gorsuch described the purpose of Article III of the Constitution as crafted by the Framers to be "the cure for their complaint [against the crown], promising there that the federal government will never be allowed to take the people's lives, liberties, or property without a decision maker insulated from the pressures other branches may try to bring to bear." Echoing a concurrence from Justice Scalia, the nominee also exhibited some doubt regarding the continued viability of the longstanding distinction between public rights and private rights as a governing principle for determining the types of claims Article I courts (like bankruptcy courts) can hear.

Judge Gorsuch has repeatedly stressed that he believes that the division of legislative and judicial powers is not a mere "formality dictated by the Constitution." Nor is it "just about ensuring that two institutions with basically identical functions are balanced one against the other." Rather, he views the separation of powers as essential to the preservation of liberty:

To the founders, the legislative and judicial powers were distinct by nature and their separation was among the most important liberty-protecting devices of the constitutional design, an independent right of the people essential to the preservation of all other rights later enumerated in the Constitution and its amendments.

Perhaps echoing Justice Scalia's quotation of poet Robert Frost, Judge Gorsuch wrote:

[O]ur whole legal system is predicated on the notion that good borders make for good government, that dividing government into separate pieces bounded both in their powers and geographic reach is of irreplaceable value when it comes to securing the liberty of the people.

According to Judge Gorsuch, the combination of legislative and judicial functions poses a grave threat to liberty, fair notice, and equal protection. Consequently it appears that a judicial test that would approve Congress's delegation of legislative responsibility to the executive branch so long as such delegation is accompanied by an "intelligible principle," would be insufficient for Judge Gorsuch in the case of criminal proscriptions. This assessment is in keeping with his broader views on the modern administrative state and the proper role of courts in interpreting the law.

Judge Gorsuch has emphasized the principle of individual liberty in applying his formalist approach to a number of cases implicating the separation of powers, especially challenges to criminal laws where some aspect is left to the executive branch to define. In United States v. Baldwin , he spent a portion of his majority opinion criticizing the proliferation of criminal prohibitions in the Code of Federal Regulations, even though the appellant did not challenge the regulation as an exercise in excessive delegation. The conviction was nevertheless affirmed.

After a panel of judges affirmed a conviction for failure to register as a sex offender, in United States v. Nichols, Judge Gorsuch dissented from the denial of a petition for rehearing en banc based on his view that Congress, in delegating to the Attorney General the authority to determine how to apply the Sex Offender Registration and Notification Act (SORNA) to those whose offenses occurred prior to its enactment, had foisted too much of its authority on the executive branch. He explained his view that:

By separating the lawmaking and law enforcement functions, the framers sought to thwart the ability of an individual or group to exercise arbitrary or absolute power. And by restricting lawmaking to one branch and forcing any legislation to endure bicameralism and presentment, the framers sought to make the task of lawmaking more arduous still. These structural impediments to lawmaking were no bugs in the system but the point of the design: a deliberate and jealous effort to preserve room for individual liberty.

Judge Gorsuch has also taken exception to the executive branch engaging in activities he regards as judicial functions, even where Congress has delegated the authority. In a pair of cases interpreting two statutory provisions, one permitting the Attorney General to grant relief from removal to aliens and the other prohibiting it, he applied—but objected to—the Supreme Court's precedent in Chevron and Brand X . These two cases, which are discussed in more detail above, generally permit agency decisions to override judicial decisions where statutory ambiguity is identified. In De Niz Robles v. Lynch , Judge Gorsuch established for the majority that there is a presumption of prospectivity to agency exercises of delegated legislative authority unless Congress has clearly authorized retroactivity, especially when agency interpretation effectively overturns a prior judicial decision. In reaching this conclusion, however, Judge Gorsuch let it be known that, if not bound by Supreme Court precedent, the court would have thought it improbable that the Framers had envisioned that an executive branch agency could ever overrule a federal court in the first place.

When the agency in question, the Board of Immigration Appeals again applied its own reinterpretation of the immigration statutes retroactively, this time to a petition submitted prior to both the reinterpretation and the subsequent appellate court approval of it, Judge Gorsuch, writing for the majority in Gutierrez-Brizuela v. Lynch , held the retroactive application invalid. He wrote that to do otherwise would raise due process and equal protection concerns. Judge Gorsuch also penned a solo concurrence to take note of the "elephant in the room":

[T]he fact is Chevron and Brand X permit 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. Maybe the time has come to face the behemoth.

He went on to explicate his views on the separation-of-powers implications of deference of agency interpretations of law, concluding that "powerful and centralized authorities like today's administrative agencies . . . warrant[] less deference from other branches, not more." Citing to Justice Felix Frankfurter's concurrence in Youngstown Sheet & Tube Co. v. Sawyer, Judge Gorsuch's concurrence dismissed more functionalist arguments in favor of a "titanic administrative state," noting the dangers of '"unchecked disregard of the restrictions' imposed by the Constitution." Judge Gorsuch's Gutierrez-Brizuela concurrence may suggest that if he is elevated to the High Court, he may embrace a more formalist approach to separation-of-powers questions that more closely scrutinizes the boundaries the Constitution places on each branch of government.

Substantive Due Process

The Supreme Court has been divided in recent years in cases involving the substantive component of the Due Process Clauses of the Fifth and Fourteenth Amendments —the source for various unenumerated rights that have been recognized by the Court as constitutionally protected, including the right to privacy, the right to an abortion, and the right to marry. Justice Scalia was a vocal critic of the substantive due process doctrine. He regularly joined majority opinions that limited the scope of the doctrine, and he dissented in cases where the Court recognized new fundamental liberty interests. Whereas Justice Scalia's views on substantive due process were well known by the time of his death, the nominee's expressed views on the doctrine are arguably less apparent and certainly less voluminous.

While serving on the Tenth Circuit, Judge Gorsuch has authored or joined a few opinions that touch on the substantive due process doctrine, and he has never squarely ruled on the right to an abortion or the right to marry. However, two opinions do provide some insights into his views on substantive due process rights. In a 2011 case, Kerns v. Bader , Judge Gorsuch, writing on behalf of a divided panel, dismissed the substantive due process claims brought by a plaintiff who alleged that a county sheriff had violated the plaintiff's rights to informational privacy by asking for and obtaining his psychiatric records from a local hospital. Noting that the government's "mere collection of information" without any further public dissemination of that information does not implicate rights to informational privacy, Judge Gorsuch dismissed the claim on qualified immunity grounds after concluding that the plaintiff had failed to demonstrate that his rights were clearly established at the time of the alleged violation. The dissent, however, called the majority's conclusion on the privacy issue "dismaying" and argued that it was "patently clear" that "individuals have a constitutional right to have their medical records kept private from law enforcement officers pursuing general investigative ends and acting in the absence of any authority to breach that privacy." Nonetheless, while acknowledging the dissent's eloquence, Judge Gorsuch concluded that it was inappropriate to resolve the "complex" Fourteenth Amendment "questions surrounding medical records," especially in the context of a qualified immunity challenge, intimating at least some reluctance to adopting a more expansive reading of substantive due process rights in an unresolved area of law.

The second opinion—perhaps the most notable substantive due process opinion authored by Judge Gorsuch—is Browder v. City of Albuquerque . This 2015 opinion held that the plaintiffs' substantive due process rights had been violated in the context of a lawsuit arising from a "terrible crash" that resulted when a police officer raced through the city streets of Albuquerque in his police cruiser after finishing his shift. In Browder , Judge Gorsuch, writing on behalf of a unanimous three-judge panel, upheld a district court order that declined to dismiss the substantive due process claims brought against the officer by the victims of the crash, one of whom died and the other of whom suffered serious injuries. In so holding, Judge Gorsuch broadly discussed the substantive due process doctrine. Describing the doctrine as having a "paradoxical name" and being a "murky area" of law, he noted the view that the doctrine either misplaces the source of fundamental rights in the Due Process Clause or has no basis whatsoever in the Constitution. However, acknowledging that the Supreme Court has established the Due Process Clause as the "home" for certain fundamental unenumerated rights, the Browder majority continued by explaining that the "doctrine should be applied and expanded sparingly" because of the open ended nature of substantive due process. In particular, relying on concurring opinions authored by Justices Kennedy and Scalia in a 1998 Supreme Court opinion, Judge Gorsuch then observed that "history and precedent" and the plaintiff's state of mind are critical guideposts to cabin the inquiry into whether a fundamental right has been infringed under the Due Process Clause.

In addition to noting these limits on the doctrine in the majority opinion, Judge Gorsuch authored a separate opinion in Browder to discuss an argument forfeited by the defendant that would further limit substantive due process claims in federal court. Namely, the nominee's concurrence argued that, if state tort law can provide an adequate remedy for an alleged substantive due process violation, federal courts should abstain from ruling on the federal claim on comity and federalism grounds. The extensive discussion of substantive due process and the limits on the doctrine in both the majority and concurring opinions in Browder is notable. After all, the majority decision ultimately concluded that the underlying legal questions raised by the case did not broach "any serious borderline disputes," with the court holding that the plaintiffs had properly alleged a violation of their fundamental rights to life without sufficient justification. As a result, the extensive concerns raised by Judge Gorsuch with respect to the substantive due process doctrine in his Browder opinions may signal the nominee's skepticism toward the application of the doctrine in cases presenting less egregious fact patterns.

Judge Gorsuch's most extensive writings on fundamental rights and substantive due process are found not in his court opinions, but in his outside work, most notably a book he wrote in 2006 entitled The Future of Assisted Suicide and Euthanasia . Notably, during the 2006 confirmation hearing for his seat on the Tenth Circuit, Judge Gorsuch stated that, while his "writings" on euthanasia and assisted suicide were, in his view, "consistent with the Supreme Court's decisions . . . and existing law," his "personal views" as expressed in his writings "have nothing to do with the case before me," as the "litigants deserve better than that" and "the law demands more than that." In fact, much of the book has little to do with the law. At its heart, the book explores the various ethical arguments regarding assisted suicide and euthanasia, ultimately lodging an argument against their legalization "based on secular moral theory." Specifically, Judge Gorsuch argues in the work that "human life is fundamentally and inherently valuable . . . the intentional taking of a human life by private persons is always wrong." Importantly, his book does not address "publicly authorized forms of killing like capital punishment and war," nor does it seek to define what is encompassed by the term "human life." Nonetheless, in assessing the philosophical arguments related to assisted suicide and euthanasia, the nominee addressed key legal doctrines implicating the right to die, including the substantive due process doctrine.

The legal discussion in Judge Gorsuch's book raises broader questions about the substantive due process doctrine and how to assess when a fundamental right is protected by the clause, providing some insight into the nominee's views on such issues. In addressing the constitutional debate regarding assisted suicide and euthanasia, the book centers on two Supreme Court cases from 1997, Washington v. Glucksberg and Vacco v. Quill , that collectively upheld state laws that outlawed assisted suicide against substantive due process and equal protection challenges. In recounting the litigation in the two cases, Judge Gorsuch devotes a chapter to questions related to determining whether a right to assisted suicide can be justified by looking at past historical practices. In evaluating the historical test for substantive due process, he notes that the test is the subject of "considerable methodological disputes," including "what 'level' of historical abstraction" is needed, "whose history" should be evaluated, and "how far back" in history the test should look.

The book itself does not expressly reject the historical test for substantive due process, nor does it attempt to resolve the debate over the test's "methodological warts." Instead, Judge Gorsuch, "seeking to apply the history test faithfully," examines the "historical record broadly in terms of time and at different levels of abstraction," concluding that there is limited support for a historical right to assisted suicide. In the discussion of the historical test, however, Judge Gorsuch challenges the views of Justices O'Connor and Kennedy respecting the historical test and the level of abstraction needed to recognize a historically based fundamental right. In Michael H. v. Gerald D. , Justice O'Connor's concurring opinion, joined by Justice Kennedy, had rejected the conclusion in Justice Scalia's plurality opinion that courts should look to the "most specific level at which a relevant tradition protecting, or denying protection to, the asserted right can be identified" when identifying what "liberty" interests are protected under the Fourteenth Amendment. Noting the distinction between the history of the law on assisted suicide and the law on suicide more generally, Judge Gorsuch questioned "whether Justices O'Connor and Kennedy meant to suggest in Michael H. that a court actually may disregard an on-point specific tradition . . . in favor of a more generally analogous, but less directly applicable one . . . ." Viewing the central case cited by Justice O'Connor's Michael H. concurrence, Eisenstadt v. Baird , as "an equal protection decision," rather than a due process one, Judge Gorsuch appears to be somewhat skeptical of more expansive views of the historical test to determine what constitutes a fundamental right.

In addition to examining the historical test for determining which liberty interests are protected by the Due Process Clause, Judge Gorsuch's book also examines what he calls the "reasoned judgment" approach whereby "moral reasoning" and "critical discourse"—as opposed to historical norms—dictate what constitutes a fundamental right. In recent years, a divided Court appears to have moved toward such an approach. Judge Gorsuch neither endorses nor rejects the reasoned judgment approach, opting instead to ask open questions that "one might" ask about the efficacy of such a method of interpretation. Nonetheless, the book does question the reach of Planned Parenthood of Southeastern Pennsylvania v. Casey , which could be seen to be based on the "reasoned judgment" approach. In particular, the controlling plurality opinion in Casey , reaffirming Roe v. Wade 's central holding respecting the right to an abortion, grounded the decision partly on the moral argument that "choices central to personal dignity and autonomy" "are central to the liberty protected by the Fourteenth Amendment." The Casey plurality also concluded that the doctrine of stare decisis—or respect for long settled law—required upholding Roe . Relying on this second holding to respond to autonomy based arguments for a right to assisted suicide, Judge Gorsuch contended that Casey should be viewed as based on its "narrowest rationale," the stare decisis rationale. Moreover, he took the view that the alternative of recognizing new rights based on broad libertarian concepts like individual autonomy could "prove too much," justifying the striking down of laws that prohibit "polygamy, consensual duels, prostitution, and . . . the use of drugs" on similar grounds. In this sense, paralleling Chief Justice Roberts's reasoning with regard to the scope of substantive due process protections, the views in Judge Gorsuch's 2006 book may question broader conceptions of the Due Process Clause that are based on abstract notions of morality.

There are, however, limits on what can be gleaned from Judge Gorsuch's book with respect to his broader views on unenumerated, fundamental rights. While the book "introduce[s] and critically examine[s] the primary legal . . . arguments" respecting legalization of assisted suicide and euthanasia, including fundamental rights and substantive due process, it does not purport to provide a conclusive view of the author's understandings of the underlying constitutional issues. At times, the book raises more questions about the underlying legal issues than it attempts to resolve definitively. And, as noted earlier, during his 2006 confirmation hearing, Judge Gorsuch has largely dismissed the argument that his writings on euthanasia and assisted suicide would in any way influence his work as a judge. More broadly, the writings of a nominee to the Supreme Court—especially those authored before the nominee became a judge—may not fully represent the nominee's current views. At the same time, Judge Gorsuch's nonjudicial writings on substantive due process, coupled with the few opinions he has written on the subject and his general views on the role of the courts, suggest that the nominee, if elevated to the Supreme Court, is unlikely to interpret the substantive component of the Due Process Clause expansively.

Takings

Relative to Justice Scalia, who authored and joined several opinions that can be interpreted as strengthening the protection of private property rights afforded by the Takings Clause of the Fifth Amendment during his tenure on the Supreme Court, Judge Gorsuch has said little on the subject and does not appear to have significantly addressed the merits of a takings claim in a judicial opinion. This is unsurprising, as the Tenth Circuit does not hear many takings claims because the Tucker Act vests the U.S. Court of Federal Claims (CFC) with jurisdiction over such claims when the plaintiff seeks more than $10,000 in compensation from the federal government. With limited exceptions, the CFC's jurisdiction over such claims is exclusive, and appeals from the CFC are heard by the Federal Circuit, not the Tenth Circuit. If Judge Gorsuch is elevated, he could very well hear takings issues on the Court's docket. However, there is currently an insufficient basis to evaluate his views regarding the scope of the Takings Clause.