Neil Gorsuch Would Be a Dream Justice for Corporations Suing the Government
President Donald Trump has nominated Judge Neil Gorsuch to a lifetime seat on the Supreme Court. Judge Gorsuch, now on the 10th U.S. Circuit Court of Appeals, did not appear on President Trump’s first list of potential Supreme Court nominees in May 2016, but he appeared on Trump’s second list just weeks after writing a judicial manifesto arguing that judges should have more power to strike down federal regulations.
The approach outlined in Judge Gorsuch’s August 2016 opinion would benefit wealthy corporations challenging laws that protect workers, consumers, and the environment. This approach would tie the government’s hands in keeping Americans safe and healthy and let judges strike down common-sense regulations that ensure the nation’s air and water are clean. If he becomes a justice, the Supreme Court would very likely continue its trend of ruling in favor of big business.
No deference to the EPA
Judge Gorsuch’s opinion harshly criticized the Supreme Court’s 1984 Chevron decision, which says that courts should not second-guess an agency’s interpretation of a vague federal law unless the agency clearly got it wrong. Judge Gorsuch argued that this common-sense rule—one that federal agencies have relied on for decades—allows agencies “to swallow huge amounts of core judicial and legislative power and concentrate federal power.” He complained that it made complying with federal regulations so complicated that one needed “an army of perfumed lawyers and lobbyists” to obey the law.
Judge Gorsuch’s views on Chevron are far outside the mainstream. Justice Clarence Thomas is the only current member of the Court who argues that Chevron should be overruled. Even Justice Antonin Scalia, a hero of Judge Gorsuch’s, warned that the impact of limiting or overruling the doctrine could be severe.
The Environmental Protection Agency, or EPA, has relied on Chevron to interpret broadly worded laws that address pollution. The Pacific Legal Foundation, which is challenging several environmental regulations in court, was absolutely giddy about Judge Gorsuch’s anti-Chevron opinion.
The Clean Power Plan—the Obama administration’s plan to address climate change by transitioning to renewable energy—is currently on hold, thanks to an order from the Supreme Court. The lawsuit challenging the plan claims that the EPA exceeded its authority under Chevron. Oil and gas companies are suing to block other regulations that limit greenhouse gases.
Voting against workers
In a 2013 ruling, Judge Gorsuch allowed for-profit corporations to assert claims of religious freedom in order to deny their workers health insurance that covers contraception, despite a law requiring such coverage. This allows corporate leaders to impose their religious views on workers, who may express their religious or moral beliefs by using contraception.
Though the Supreme Court later agreed with Gorsuch’s view, a dissenting judge noted that the 10th Circuit’s ruling was unprecedented at the time. The dissent argued that “the decision of a female employee as to which contraceptive drug or device to use remains a private matter of individual choice.”
Judge Gorsuch has voted against workers in several dissents. He rejected a female truck driver’s discrimination claim and wanted to overturn an award of back pay for workers who had their pay improperly reduced. Judge Gorsuch also voted to throw out a fine against a company for failing to properly train a worker who died in an accident.
Giving unelected judges more power
In addition to casting votes against workers, Judge Gorsuch’s views on the Chevron case would upset the long-standing separation of power between the judiciary and the political branches of government. His philosophy would give unelected judges more power to strike down regulations. In 2005, Gorsuch wrote that liberals had focused too much on achieving goals, such as marriage equality, through litigation, but Gorsuch seems to be fine with corporations using lawsuits to strike down laws if they do not want to comply.
Billy Corriher is the Deputy Director of Legal Progress at the Center for American Progress.
The positions of American Progress, and our policy experts, are independent, and the findings and conclusions presented are those of American Progress alone. A full list of supporters is available here. American Progress would like to acknowledge the many generous supporters who make our work possible.
Deputy Director, Legal Progress