Defending religious liberties and limiting government’s regulatory power defined Neil Gorsuch’s decade-plus tenure on the 10th U.S. Circuit Court of Appeals in Denver.
But the judge nominated by President Donald Trump to the U.S. Supreme Court also scolded his fellow jurists for overreaching in a law-enforcement case and upheld Colorado’s clean-energy rules in a challenge from the coal industry.
Gorsuch’s conservative credentials and artful writing style are evident in his rulings and dissents. So is his independent streak, The Denver Post found in a review of his judicial record.
The case: Hobby Lobby Stores vs. Sebelius, 2013. The Hobby Lobby craft store chain sued to challenge the requirement in the Affordable Care Act that an employer’s insurance policy must cover all forms of birth control.
The ruling: The 10th Circuit ruled that federal law prohibited the requirement from applying to closely held corporations, with Judge Gorsuch in agreement. The U.S. Supreme Court later upheld that view in a 5-4 decision.
In his concurring opinion, Gorsuch defended religious freedom, writing that it “doesn’t just apply to protect popular religious beliefs: it does perhaps its most important work in protecting unpopular religious beliefs, vindicating this nation’s long-held aspiration to serve as a refuge of religious tolerance.” He argued that the ACA would force businesses “to underwrite payments for drugs or devices that can have the effect of destroying a fertilized human egg.”
Quote: “It is not for secular courts to rewrite the religious complaint of a faithful adherent, or to decide whether a religious teaching about complicity imposes ‘too much’ moral disapproval on those only ‘indirectly’ assisting wrongful conduct.”
Rights of religious orders
The case: Little Sisters of the Poor Home for the Aged vs. Burwell, 2015. After the Hobby Lobby case, the Denver-based Little Sisters of the Poor challenged the birth-control mandate on different legal grounds.
The ruling: The health care law allowed nonprofits to opt out, but the Catholic Little Sisters suggested it still substantially burdened their religious exercise.
Gorsuch joined a dissenting opinion arguing for a full court review. “The opinion of the panel majority is clearly and gravely wrong — on an issue that has little to do with contraception and a great deal to do with religious liberty,” the opinion opened. The Supreme Court later sent the case back to lower courts to find a settlement that accommodates the Catholic order’s religious beliefs.
Quote: “When a law demands that a person do something the person considers sinful, and the penalty for refusal is a large financial penalty, then the law imposes a substantial burden on that person’s free exercise of religion.”
Federal executive authority
The case: Gutierrez-Brizuela vs. Lynch, 2016. A man applied for lawful immigration status, but his case became entangled between administrative rules and related court decisions.
The ruling: Writing for the court, Gorsuch ruled that immigration officials overstepped their authority. But what makes this ruling stand out is Gorsuch’s questions about what is called the Chevron doctrine. The long-standing but little-noticed tenant suggests the courts should defer to the executive branch to interpret the law.
In his concurring opinion, featuring a lengthy discussion of the Constitutional framers and the separation of powers, Gorsuch argued the courts are the better arbiter when it comes to weighing the legality of government regulations and rules.
Quote: “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.”
Planned Parenthood funding
The case: Planned Parenthood Association of Utah vs. Herbert, 2016. Utah Gov. Gary Herbert ordered the state to suspend providing money to Planned Parenthood after the release of videos — later disputed — regarding the alleged sale of fetal tissue. Planned Parenthood sued to block the order.
The ruling: A three-judge panel at the 10th Circuit reversed a lower court ruling to allow Planned Parenthood to receive a preliminary injunction to block the governor’s order while the case proceeded.
An unidentified 10th Circuit judge, without prodding from Utah, sought a rehearing of the case before the full panel. But the majority of the court denied the rehearing. Gorsuch authored a dissenting opinion that argued the three-judge panel’s initial ruling was inconsistent with its uniform practices regarding burden of proof and legal significance. He went on to suggest the governor’s action was lawful.
Quote: “It is undisputed, too, that the governor was free as a matter of law to suspend the funding in question for this reason.”
Colorado’s clean energy program
The case: Energy and Environment Legal Institute vs. Epel, 2015. An organization that represents out-of-state coal producers challenged Colorado’s renewable energy standard in 2004, arguing it was unconstitutional under the dormant commerce clause.
The ruling: In an opinion for the court, Gorsuch rejected the challenge and sided with the lower court, writing that the lawsuit sought to invoke “the most dormant doctrine in dormant commerce clause jurisprudence.”
The commerce clause has been used by judges to strike down state laws that interfere with interstate commerce. But Gorsuch said the doctrine is “absent from the Constitution’s text and incompatible with its structure.”
Quote: “If there’s any disproportionate adverse effect felt by out-of-state producers or any disproportionate advantage enjoyed by in-state producers, it hasn’t been explained to this court.”
Defendant’s right to counsel
The case: Williams vs. Jones, 2009. The question involved whether a defendant’s right to effective counsel was violated. The defendant wanted to accept a 10-year prison term for a guilty plea on a second-degree murder charge. His counsel refused to represent him should he take the deal. The defendant was convicted at trial of first-degree murder and sentenced to life in prison without parole.
The ruling: The 10th Circuit ruled that the defendant’s rights were violated as counsel wrongly interpreted the law. Gorsuch wrote a dissenting opinion.
Quote: “The Sixth Amendment right to effective assistance of counsel is an instrumental right designed to ensure a fair trial. By his own admission, (the defendant) received just such a trial, at the end of which he was convicted of first-degree murder by a jury of his peers. We have no authority to disturb this outcome. … due process guarantees a fair trial, not a good bargain.”
The case: A.M. on behalf of her minor child vs.
Holmes, 2016. The question focused on whether qualified immunity — where government officials are protected from liability — extended to school officials was justified. A 13-year-old boy was handcuffed and arrested on a misdemeanor charge of disrupting the educational process for having burped incessantly in gym class. The family sued.
The ruling: The court ruled that police reasonably used the law to declare the boy had disrupted class and that qualified immunity applied. Gorsuch dissented, saying his judicial colleagues had overreached in their determination and the police response should be in proportion to the offense.
Quote: “I would have thought this authority sufficient to alert any reasonable officer in this case that arresting a now compliant class clown for burping was going a step too far. … Indeed, a judge who likes every result he reaches is very likely a bad judge, reaching for results he prefers rather than those the law compels.”
Police use of force
The case: Wilson vs. City of Lafayette, 2013. Police chased a drug suspect on foot for nearly a mile. When ordered to stop, the suspect reached to his right pants pocket several times and was tasered. One of the prongs pierced his head. He died after being disabled. The lower court ruled against the man’s family and granted the officer’s qualified immunity from suit.
The ruling: The 10th Circuit Court held the officer was entitled to qualified immunity and that officers must reasonably know their actions violate a defendant’s constitutional rights in order to be held culpable. Gorsuch authored the unanimous opinion.
Quote: “The situation at the time the officer fired his taser was … replete with uncertainty and a reasonable officer in his shoes could have worried he faced imminent danger from a lethal weapon. A reasonable officer need not await the glint of steel before taking self-protective action.”