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With Gorsuch, Nothing Could Change -- or Everything Could

By Casey C. Sullivan, Esq. | Last updated on

"Put simply," Tenth Circuit Judge Neil Gorsuch wrote in his 2008 Gutierrez-Brizuela v. Lynch concurrence, "it seems to me that in a world without Chevron very little would change -- except perhaps the most important thing." The opinion was the capstone to his opposition to the power of administrative agencies and the judicial doctrines that granted them so much deference.

But it's also appropriate for Gorsuch's own nomination to the Supreme Court, for a Court with Gorsuch on board could change very little -- except, perhaps, where it most counts.

Returning to the Status Quo

In some respects, a Justice Gorsuch would return the Court back to where it was before Justice Scalia's passing. Gorsuch, after all, is a staunch conservative. He's an originalist. A textualist. A pretty good writer. His jurisprudence is not just modeled after Justice Scalia's, the late justice was also somewhat of a friend, joining Gorsuch on a fly-fishing trip in Gorsuch's native Colorado.

If Gorsuch fills "Scalia's seat," then, not much will change in terms of the Court's ideological makeup or voting patterns. There will be four highly conservative justices, with Gorsuch and Thomas likely making up the farthest right of the Court's right wing, while Justice Kennedy would remain the regular swing vote.

It will be like 2015 all over again.

Changing the Most Important Things

Look at Gorsuch's nomination from another perspective, however, and one can see the change it might bring to the Supreme Court, particularly around hot-button issues where the Court is already divided.

When it comes to reproductive rights, for example, Gorsuch has twice voted to limit employees' access to birth control. In his concurrence to the Tenth Circuit's Hobby Lobby decision, Gorsuch argued that courts must accept individuals' religious beliefs "as they understand it," including determinations of what violates those beliefs. (Like, say, filling out a form or having a Social Security number.) He reiterated those arguments in his Little Sisters of the Poor v. Burwell dissent

That position could lead to greater leeway for religious employers, beyond what Hobby Lobby already provides.

Indeed, Gorsuch's inclination to support religious petitioners could have an impact on everything from anti-discrimination laws to tire recycling programs. His opposition to physician-assisted suicide could roll over into opposition to Roe v. Wade, pro-choice groups worry.

Reconsidering the Fourth Branch of Government

There is, too, administrative law and court's review of federal agency actions. Gorsuch has recommended reconsidering Chevron and Brand X, two Supreme Court decisions that grant deference to agency interpretations of ambiguous laws. In his Gutierrez-Brizuela concurrence, he writes:

[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.

That's a strong break with Justice Scalia, who often bemoaned the interference of an unelected judiciary in the political process. If Gorsuch had his way and the world was rid of Chevron deference, it would mark a major change in the balance of power, giving courts more say over the actions of administrative agencies.

(Interestingly, Gorsuch's mother, Anne Gorsuch Burford, was head of the EPA under Reagan, where she worked to reduce the size and power of the agency. Perhaps skepticism towards federal agencies runs in the family?)

Gorsuch's vote wouldn't be enough to undo decades of administrative law, but a Justice Gorsuch could lay the groundwork for later changes, just as Justice Scalia's Nollan decision set up later restrictions on "regulatory takings."

Not Gorsuch, but Who Comes After

Some, too, see Gorsuch as possibly leading to Justice Kennedy's retirement. According to the New York Times's Peter Baker, Gorsuch's nomination is meant to spur Justice Kennedy, who Gorsuch had previously clerked for, to step down:

The idea is to show Justice Kennedy, 80, that should he step down at some point, Mr. Trump would select as his replacement a nominee similar to Judge Gorsuch, and not one so inflammatory or outside the mainstream as to be unacceptable to Justice Kennedy. Although certainly more conservative than the justice, Judge Gorsuch once clerked for him and has his enduring respect.

It's doubtful that the plan would work, but it's not impossible that a justice could leave the Court in the next four years, whether or not it's Kennedy.

If Justice Thomas retires, that won't change the Court's balance too drastically. But if Justice Ginsburg or Justice Breyer, 83 years old and 78 years old respectively, were to leave the Court, another Trump nominee could swing the Supreme Court to the right for decades to come. And that would truly be a major change.

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