Gorsuch served as a judicial clerk for Judge David B. Sentelle of the United States Court of Appeals for the D.C. Circuit from 1991 to 1992, and then for Supreme Court Justices Byron White and Anthony Kennedy from 1993 to 1994. Gorsuch's work with White occurred right after White retired from the Supreme Court; therefore, Gorsuch assisted White with his work on the Tenth Circuit, where White sat by designation. Gorsuch was part of a group of five law clerks assigned that year which included Brett Kavanaugh who described Gorsuch at the time stating: "He fit into the place very easily. He's just an easy guy to get along with. He doesn't have sharp elbows. We had a wide range of views, but we all really got along well."
In 2005, at Kellogg Huber, Gorsuch wrote a brief denouncing class action lawsuits by shareholders. In the case of Dura Pharmaceuticals, Inc. v. Broudo, Gorsuch opined that "The free ride to fast riches enjoyed by securities class action attorneys in recent years appeared to hit a speed bump" and that "the problem is that securities fraud litigation imposes an enormous toll on the economy, affecting virtually every public corporation in America at one time or another and costing businesses billions of dollars in settlements every year".
In Pleasant Grove City v. Summum (2007), he joined Judge Michael W. McConnell's dissent from the denial of rehearing en banc, taking the view that the government's display of a donated Ten Commandments monument in a public park did not obligate the government to display other offered monuments. Most of the dissent's view was subsequently adopted by the Supreme Court, which reversed the judgment of the Tenth Circuit. Gorsuch has written that "the law [...] 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".
Gorsuch has called for reconsideration of Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc. (1984), in which the Supreme Court instructed courts to grant deference to federal agencies' interpretation of ambiguous laws and regulations. In Gutierrez-Brizuela v. Lynch (2016), Gorsuch wrote for a unanimous panel finding that court review was required before an executive agency could reject the circuit court's interpretation of an immigration law.
In 2013, Gorsuch joined a unanimous panel finding that federal courts could not hear a challenge to Colorado's internet sales tax. That ruling was reversed by a unanimous Supreme Court in Direct Marketing Ass'n v. Brohl (2015). In 2016, the Tenth Circuit panel rejected the challenger's dormant commerce clause claim, with Gorsuch writing a concurrence.
In Energy and Environmental Legal Institute v. Joshua Epel (2015), Gorsuch held that Colorado's mandates for renewable energy did not violate the commerce clause by putting out-of-state coal companies at a disadvantage. Gorsuch wrote that the Colorado renewable energy law "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".
In Riddle v. Hickenlooper (2014), Gorsuch joined a unanimous panel of the Tenth Circuit in finding that it was unconstitutional for a Colorado law to set the limit on donations for write-in candidates at half the amount for major party candidates. Gorsuch added a concurrence where he noted that although the standard of review of campaign finance in the United States is unclear, the Colorado law would fail even under intermediate scrutiny.
In Planned Parenthood v. Gary Herbert (2016), Gorsuch wrote for the four dissenting judges when the Tenth Circuit denied a rehearing en banc of a divided panel opinion that had ordered the Utah governor to resume the organization's funding, which Herbert had blocked in response to a video controversy.
In A.M., on behalf of her minor child, F.M. v. Ann Holmes (2016), the Tenth Circuit considered a case in which a 13-year-old child was arrested for burping and laughing in gym class. The child was handcuffed and arrested based on a New Mexico statute that makes it a misdemeanor to disrupt school activities. The child's family brought a federal 42 U.S.C. § 1983 (civil rights) action against school officials and the school resource officer who made the arrest, arguing that it was a false arrest that violated the child's constitutional rights. In a 94-page majority opinion, the Tenth Circuit held that the defendants enjoyed qualified immunity from suit. Gorsuch wrote a four-page dissent, arguing that the New Mexico Court of Appeals had "long ago alerted law enforcement" that the statute that the officer relied upon for the child's arrest does not criminalize noises or diversions that merely disturb order in a classroom.
In 2009, Gorsuch wrote for a unanimous panel finding that a court may still order criminals to pay restitution even after it missed a statutory deadline. That ruling was affirmed 5-4 by the Supreme Court in Dolan v. United States (2010).
In United States v. Games-Perez (2012), Gorsuch ruled on a case where a felon owned a gun in violation of 18 U.S.C.§ 922(g)(1), but alleged that he did not know that he was a felon at the time. Gorsuch joined the majority in upholding the conviction based on Tenth Circuit precedent. However, he filed a concurring opinion arguing that said precedent was wrongly decided: "The only statutory element separating innocent (even constitutionally protected) gun possession from criminal conduct in §§ 922(g) and 924(a) is a prior felony conviction. So the presumption that the government must prove mens rea here applies with full force." In the 2019 case Rehaif v. United States, the Supreme Court overruled this decision with Gorsuch joining.
In 2013, Gorsuch joined a unanimous panel finding that intent does not need to be proven under a bank fraud statute. That ruling was affirmed by a Supreme Court unanimous in judgment in Loughrin v. United States (2014). In 2015, Gorsuch wrote a dissent to the denial of rehearing en banc when the Tenth Circuit found that a convicted sex offender had to register with Kansas after he moved to the Philippines. The Tenth Circuit was then reversed by a unanimous Supreme Court in Nichols v. United States (2016).
McClendon v. City of Albuquerque, 630 F. 3d 1288 (2011) dismissing class action lawsuit over inhumane jail conditions
Public Service Co. of New Mexico v. NLRB, 692 F. 3d 1068 (2012) dismissing a union's claim that the NLRB was wrong to not find an unfair labor practice, when an employer dismissed a worker for deliberately disconnecting a customer's gas supply (no evidence that it treated this employee differently)
United States v. Games-Perez, 695 F. 3d 1104 (2012) on imprisonment without trial
Niemi v. Lasshofer, 728 F. 3d 1252 (2013) fugitive disentitlement doctrine
Riddle v. Hickenlooper, 742 F. 3d 922 (2014) stating: "No one before us disputes 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. Buckley v. Valeo, 424 U.S. 1, 26 (1976)"
Yellowbear v. Lampert, 741 F. 3d 48 (2014) freedom to practice religion in prison
United States v. Mitchell (2016) evidence, tracking without a warrant
NLRB v. Community Health Services, 812 F.3d 768 (2016) dissenting, arguing against an NLRB decision that interim earnings should not be disregarded when calculating back pay for employees whose hours were unlawfully reduced
TransAm Trucking v. Administrative Review Board, 833 F. 3d 1206 (2016) dissenting against the majority's judgment that an employee was unjustly dismissed.
Trump formally transmitted his nomination to the Senate on February 1, 2017. The American Bar Association unanimously gave Gorsuch its top rating--"Well Qualified"--to serve as Associate Justice of the U.S. Supreme Court. His confirmation hearing before the Senate started on March 20, 2017.
On April 3, the Senate Judiciary Committee approved his nomination with a party-line 11-9 vote. On April 6, 2017, Democrats filibustered (prevented cloture) the confirmation vote of Gorsuch, after which the Republicans invoked the "nuclear option", allowing a filibuster of a Supreme Court nominee to be broken by a simple majority vote.
John Finnis, who supervised Gorsuch's dissertation at Oxford, stated that "The allegation is entirely without foundation. The book is meticulous in its citation of primary sources. The allegation that the book is guilty of plagiarism because it does not cite secondary sources which draw on those same primary sources is, frankly, absurd." Kuzma stated, "I have reviewed both passages and do not see an issue here, even though the language is similar. These passages are factual, not analytical in nature, framing both the technical legal and medical circumstances of the 'Baby/Infant Doe' case that occurred in 1982." In his book on Gorsuch, John Greenya described how Gorsuch was challenged during his confirmation hearings concerning some of his dissertation advisor's more strident views, which Gorsuch generally disagreed with.
On April 7, 2017, the Senate confirmed Gorsuch's nomination to the Supreme Court by a 54-45 vote, with three Democrats (Heidi Heitkamp, Joe Manchin, and Joe Donnelly) joining all the Republicans in attendance.
Gorsuch received his commission on April 8, 2017. He was sworn into office on Monday, April 10, 2017, in two ceremonies. The chief justice of the United States administered the constitutional oath of office in a private ceremony at 9:00 a.m. at the Supreme Court, making Gorsuch the 101st associate justice of the Court. At 11:00 a.m., Justice Anthony M. Kennedy administered the judicial oath of office in a public ceremony at the White House Rose Garden.
Gorsuch wrote his first U.S. Supreme Court decision for a unanimous court in Henson v. Santander Consumer USA Inc., 582 U.S. ___ (2017). Gorsuch and the Court ruled against the borrowers, holding that Santander in this case is not a debt collector under the Fair Debt Collection Practices Act since they purchased the original defaulted car loans from CitiFinancial for pennies on the dollar, making Santander the owner of the debts and not merely an agent. When the act was enacted, regulations were put on institutions that collected other companies' debts, but the act left unaddressed businesses collecting their own debts.
In 2017, in Pavan v. Smith, the Supreme Court "summarily overruled" the Arkansas Supreme Court's decision to deny same-sex married parents the same right to appear on the birth certificate. Gorsuch wrote a dissent, joined by Thomas and Alito, arguing that the Court should have fully heard the arguments of the case.
The ruling was 6-3 with Gorsuch being joined by Chief Justice Roberts and the court's four Democratic appointees. Justices Thomas, Alito, and Kavanaugh dissented from the decision, arguing that it improperly extended the Civil Rights Act to include sexual orientation and gender identity.
In October 2020, Gorsuch agreed with the justices in an "apparently unanimous" decision to deny an appeal from Kim Davis, a county clerk who refused to issue marriage licenses to same-sex couples. In June 2021, he joined the justices in a unanimous decision, ruling in favor of a Catholic adoption agency that had been denied a contract by the City of Philadelphia due to the agency's refusal to adopt to same-sex couples; Gorsuch joined a concurring opinion, authored by Alito and also joined by Thomas, that argued for reconsidering, possibly overturning, the Employment Division v. Smith decision, "an important precedent limiting First Amendment protections for religious practices." Also in 2021, he was one of three justices, with Thomas and Alito, who voted to hear an appeal, which was rejected due to four votes being needed, from a Washington State florist who had refused service to a same-sex couple based on her religious beliefs against same-sex marriage.
Gorsuch wrote a statement regarding the denial of an application for a stay presented to Chief Justice John Roberts in the 2019 United States Court of Appeals for the District of Columbia Circuit case Guedes v. Bureau of Alcohol, Tobacco, Firearms, and Explosives, a case challenging the Donald Trump administration's ban on bump stocks. In his statement Gorsuch criticed the action of the Trump Administration as well as the justification used by the U.S. Court of Appeals for the D.C. Circuit for its opinion upholding the ban.
In December 2018, Gorsuch dissented when the Court voted against hearing cases brought by the states of Louisiana and Kansas to deny Medicaid funding to Planned Parenthood. Gorsuch, along with Justice Alito, joined the dissent authored by Justice Thomas, arguing that it was the court's job to hear the case.
In February 2019, Gorsuch sided with three of the court's other conservative justices voting to reject a stay to temporarily block a law restricting abortion in Louisiana. The law that the court temporarily stayed, in a 5-4 decision, would require that doctors performing abortions have admitting privileges in a hospital. In June 2020, the Supreme Court struck down Louisiana's abortion restriction in June Medical Services, LLC v. Russo, a 5-4 decision; Gorsuch was among the four dissenting justices.
Native American law
In March 2019, Justice Gorsuch departed from his four fellow conservative justices, joining the four more liberal Justices (in two plurality opinions) in a 5-4 majority in Washington State Dept. of Licensing v. Cougar Den, Inc. The Court's decision sided with the Yakama Nation, striking down a Washington state tax on transporting gasoline, on the basis of an 1855 treaty in which the Yakama ceded a large portion of Washington in exchange for certain rights. In his concurrence, which was joined by Justice Ginsburg, Gorsuch ended his opinion by writing: "Really, this case just tells an old and familiar story. The State of Washington includes millions of acres that the Yakamas ceded to the United States under significant pressure. In return, the government supplied a handful of modest promises. The state is now dissatisfied with the consequences of one of those promises. It is a new day, and now it wants more. But today and to its credit, the Court holds the parties to the terms of their deal. It is the least we can do."
In May 2019, Gorsuch again joined the four more liberal justices in a decision favorable to the treaty rights of Native Americans, signing onto Justice Sotomayor's opinion to reach a 5-4 decision in Herrera v. Wyoming. This case held that hunting rights in Montana and Wyoming, granted by the U.S. government to the Native American Crow people by an 1868 treaty, were not extinguished by the 1890 grant of statehood to Wyoming.
In July 2020, Gorsuch again joined the liberal justices to make a 5-4 majority in McGirt v. Oklahoma in a decision, written by Gorsuch, that found that "For Major Crimes Act purposes, land reserved for the Creek Nation since the 19th century remains 'Indian country.'" In the majority case opinion, Gorsuch wrote, "Today we are asked whether the land these treaties promised remains an Indian reservation for purposes of federal criminal law. Because Congress has not said otherwise, we hold the government to its word."
President Trump's tax records
In July 2020, the Supreme Court ruled, in two separate 7-2 decisions in Trump v. Vance that the Manhattan district attorney could access President Trump's tax records, but returned the case of Congressional access to the lower courts, pending the outcome of that case. Justice Gorsuch joined Roberts, Kavanaugh, and the four Democratic appointees in the majority in both cases while justices Thomas and Alito dissented from the decisions.
Gorsuch is a proponent of originalism, the idea that the Constitution should be interpreted as perceived at the time of enactment, and of textualism, the idea that statutes should be interpreted literally, without considering the legislative history and underlying purpose of the law. An editorial in the National Catholic Register opined that Gorsuch's judicial decisions lean more toward the natural law philosophy.
In January 2019, Bonnie Kristian of The Week wrote that an "unexpected civil libertarian alliance" was developing between Gorsuch and Sonia Sotomayor "in defense of robust due process rights and skepticism of law enforcement overreach."
FiveThirtyEight used Lee Epstein et al.'s Judicial Common Space scores (which are not based on a judge's behavior, but rather the ideology scores of either home state senators or the appointing president) to find a close alignment between the conservatism of other appellate and Supreme Court judges such as Brett Kavanaugh, Clarence Thomas, and Samuel Alito.The Washington Posts statistical analysis estimated that the ideologies of most of Trump's announced candidates were "statistically indistinguishable" and also associated Gorsuch with Kavanaugh and Alito.
Gorsuch in 2019
In a 2016 speech at Case Western Reserve University, Gorsuch said that judges should strive to apply the law as it is, focusing backward, not forward, and 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--not to decide cases based on their own moral convictions or the policy consequences they believe might serve society best.
In a 2005 article published by National Review, Gorsuch argued that "American liberals have become addicted to the courtroom, relying on judges and lawyers rather than elected leaders and the ballot box, as the primary means of effecting their social agenda" and that they are "failing to reach out and persuade the public". Gorsuch wrote that, in doing so, American liberals are circumventing the democratic process on issues like gay marriage, school vouchers, and assisted suicide, and this has led to a compromised judiciary, which is no longer independent. Gorsuch wrote that American liberals' "overweening addiction" to using the courts for social debate is "bad for the nation and bad for the judiciary".
In the book, Gorsuch makes clear his personal opposition to euthanasia and assisted suicide, arguing that the U.S. should "retain existing law [banning assisted suicide and euthanasia] on the basis that human life is fundamentally and inherently valuable, and that the intentional taking of human life by private persons is always wrong."
Gorsuch has been considered to follow in Scalia's footsteps as a textualist in statutory interpretation of the plain meaning of the law. This was exemplified in his majority opinion for the landmark case Bostock v. Clayton County, Georgia (590 U.S. ___ (2020)) which ruled that Title VII of the Civil Rights Act of 1964 grants protection from employment discrimination due to sexual orientation and gender identity. Gorsuch wrote in the decision "An employer who fired an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids."
He has authored two non-fiction books. His first book, The Future of Assisted Suicide and Euthanasia, was published by Princeton University Press in July 2006. He is a co-author of The Law of Judicial Precedent, published by Thomson West in 2016.
When the couple returned to the United States they started attending Holy Comforter, an Episcopal parish in Vienna, Virginia, where he also volunteered as an usher. Church records indicate that the Gorsuches were members of Holy Comforter. He later attended St. John's Episcopal Church in Boulder, Colorado, considered a liberal church because it kept an open-door policy for the LGBT community prior to legislation establishing gender preference equality laws. The Episcopal Church and the Church of England are both members of the Anglican Communion, which considers itself to be both Catholic and Reformed but rejects papal authority. After marrying in a non-Catholic ceremony and joining an Episcopal church, Gorsuch has not publicly stated if he considers himself a Catholic who is also a Protestant or simply a Protestant.
Awards and honors
Gorsuch is the recipient of the Edward J. Randolph Award for outstanding service to the Department of Justice, and of the Harry S. Truman Foundation's Stevens Award for outstanding public service in the field of law.
^ ab"Judge Neil M. Gorsuch". Administrative Office of the United States Courts. The United States Court of Appeals for the Tenth Circuit. Archived from the original on February 2, 2017. Retrieved 2018.