Neil Gorsuch, the 10th Circuit judge nominated by President Donald Trump to fill the vacant seat on the US Supreme Court, is widely expected to favor big business should he be confirmed by the Senate.
“The [Chief Justice John] Roberts court has been the most pro-business Supreme Court in the history of the court,” Michael Burg, founder of the Denver-based law firm Burg, Simpson, Eldredge, Hersh & Jardine, told Business Insider.
“When I look at Judge Gorsuch, do I think he is pro-business? The answer is yes,” he added. “Does he match up with Justice Scalia in terms of his view of the Constitution and that you have to go back and look at the Constitution in terms of how the framers and the founders meant it to be in 1789? Yes.”
Carter Phillips, a Washington, DC, lawyer who has argued before the Supreme Court more than any other attorney in private practice, said a Gorsuch appointment to the court would, in all likelihood, keep with the “status quo.”
“It will be pretty much how the court was prior to Justice Scalia’s death,” he said, later adding, “[It] will largely be the path the court will continue [on] in a way that is fundamentally different than the way it would’ve if Judge [Merrick] Garland’s nomination had not died on the vine the way it did.”
But, both said they believe the door is open to some change.
The expectation Gorsuch will rule on the side of big business has been drawn from the opinions he authored while serving on the 10th Circuit court’s bench. In that role, he was not able to rule on many big business-related cases, due to the court’s locale.
As a result, how he would rule on several major business issues almost certain to hit the court within the next few years is not fully known.
“I don’t view Judge Gorsuch as a clone of Justice Scalia,” Phillips said. “I’m sure he may have places where he differences with [Scalia] on particular nuances.”
One of the biggest upcoming areas where Gorsuch could potentially make a difference is in his interpretation of what’s known as “Chevron deference,” named for a 1984 case in which the court ruled the interpretation of a government agency should be deferred to when a law or statute it administers is under question. It quite predictably has a major affect on the regulatory state, and critics say it provides such agencies with vast power not permitted to other sectors of the government.
It’s one of several business-related areas where those watching the court have a sense of where Gorsuch would come down, as Gorsuch is an avowed textualist and originalist.
In a concurring opinion last August, Gorsuch said “Chevron deference” allows the executive branch to “swallow huge amounts of power” from the judicial and legislative branches, which “seems more than a little difficult to square with the Constitution of the framers’ design,” as CNN reported. Scalia had spoken out in favor of the Chevron ruling.
Phillips said to watch for cases related to “Chevron deference” should Gorsuch be confirmed.
“That issue, the extent to which the agency interprets its own authority and can kind of bootstrap itself into kind of expanding its decision making beyond what you would think the statute would allow, and whether the courts have to divert that and say ‘no, no, no, you can’t go that far’ is a huge issue,” Phillips said. “But again, that will probably take two or three cases before it’s settled down and it may not be settled down, because it’s a 5-4 court and it’s still not clear how far any of the five conservatives would be willing to go on Chevron.”
He added that, while “a lot of people” will say Gorsuch’s view is “a big change from Scalia,” the late justice was beginning to move in the direction of Gorsuch in his later decisions on the matter.
“I know it wasn’t [Scalia’s] perspective once upon a time, but I do think there’s been a fair amount of movement,” he said. “Obviously, Justice [Clarence] Thomas staked out a really aggressive opinion on that two terms ago. And, I don’t see a majority of the justices adopting his view, but I certainly think it will be a big ticket item. That goes beyond the business community, because obviously agencies are ubiquitous at this point. Agencies can decide thousands and thousands of things.”
Another business-related issue Gorsuch has staked out a position on is class actions. As was reported in The Wall Street Journal, a December ruling Gorsuch was a part of “made it easier for defendant companies to transfer class actions from state to federal court in some instances.”
Phillips said he expects “another round of class action issues” to come around to the Supreme Court soon, adding Gorsuch as “expressed some misgivings about more modern interpretations” on those issues.
The Journal also reported that Gorsuch’s history shows a mixed record on cases related to labor and employment, while he has ruled in business’s favor on a case related to arbitration.
In terms of what areas are less of a sure thing with Gorsuch, Phillips said he’s curious to see where the judge stands on due process limits on punitive damages, the dormant commerce clause, and intellectual property rights.
On the controversial 2010 Citizens United decision related to campaign finance, which ruled corporations and labor unions could donate freely to politicians as people would, Burg said Gorsuch’s stance would likely be “consistent with the ruling that would already come down” should a case related to it come before the court
“But I would have some reservation,” he said. “Because my experience with him is that he’s not a justice who says this is the result I want, now let me justify it.”
Still, the consensus is Gorsuch will rule alongside his fellow conservative justices on the bench in areas where it is not as well known where he will come down.
Travis Lenkner, a managing director at Burford Capital who once clerked for Justice Anthony Kennedy, told Business Insider that’s why he believed “you saw this pick cheered among the business community.”
“This is not swapping like for like,” he said. “But Judge Gorsuch is easily someone who can swap in and occupy the seat that Justice Scalia occupied and do so ably and not really change the mix of outlooks or votes that’s been present on the court for more than a decade now.”