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Neil Gorsuch on the issues
By Ariane de Vogue
When President Donald Trump set out to choose a Supreme Court nominee, one factor was critical: a proven record.
On that front, Judge Neil Gorsuch, who has a long paper trail of judicial opinions from his time on the 10th US Circuit Court of Appeals, appears to be the perfect candidate for judicial conservatives.
They are pleased with the opinions on the books, and they feel confident that on issues he has not directly considered, such as abortion and the gun rights he will be guided by his conservative values.
Here's what we know about Gorsich on many of the hot-button issues of today's Supreme Court:
Religious liberty and the contraceptive mandate
Judicial conservatives believe that Gorsuch's commitment to religious liberty is solid.
He joined an opinion siding with a closely held businesses that objected to the so-called contraceptive mandate in Obamacare.
The case concerned Hobby Lobby, a craft store chain that objected to providing certain contraceptives in their health care plan under Obamacare. In his typically lucid prose, Gorsuch stressed why the Greens, the family that owns Hobby Lobby, had a legal right to be in court.
"This isn't the case, say, of a wily businessman seeking to use an insincere claim of faith as cover to avoid a financially burdensome regulation," Gorsuch wrote. Instead, he said, the so-called contraceptive mandate required the family to violate their religious faith.
"For some, religion provides an essential source of guidance both about what constitutes wrongful conduct and the degree to which those who assist others in committing wrongful conduct themselves bear moral culpability," he wrote. "The Green family members are among those who seek guidance from their faith on these questions. Understanding that is the key to understanding this case."
In another opinion, Gorsuch ruled in favor of an inmate in Wyoming who sought to use a sweat lodge in the prison yard as a part of a Native American religious tradition. The state's prison policy barred him from doing so.
"While those convicted of crime in our society lawfully forfeit a great many civil liberties, Congress has (repeatedly) instructed that the sincere exercise of religion should not be among them -- at least in the absence of a compelling reason," Gorsuch wrote. "In this record we can find no reason like that."
Separation of powers, immigration, and the environment
Gorsuch's views on the constitutional separation of powers issue could have an interesting short-term impact on the Trump administration and immigration.
At issue is what might seem like a dry legal doctrine known as "Chevron deference."In the simplest terms, back in 1984, the Supreme Court held in Chevron U.S.A. Inc. v. Natural Resources Defense Council that when a law is ambiguous, courts must defer to the interpretation of a law adopted by the federal agency charged with enforcing that law, as long as the interpretation is reasonable.
Liberals in recent years have tended to support Chevron because when there is congressional gridlock, Democratic presidents have interpreted older statutes having to do with issues such as the environment and labor to allow them to implement broader protections. President Barack Obama was especially active on that front.
Gorsuch has been a strong critic of Chevron, arguing it gives agencies too much power to say what the law is, which is really the job of the courts.
"Clarence Thomas is the only current justice who shares a similar deregulatory philosophy," said Michele Jawando of the liberal Center for American Progress.
But Gorsuch's view could cause him to vote against Trump if there were ever a legal challenge to the President's executive order on immigration at the high court.
"If Gorsuch had his way, the court might be less forgiving of the Trump administration's interpretation of immigration law," said Jeff Pojanowski of Notre Dame Law School.
"Justice Scalia was a long-time defender of Chevron deference," Pojanowski said, "while Gorsuch is emerging as one of its sharpest critics."
Gorsuch has never ruled directly on Roe v. Wade, the landmark opinion legalizing abortion. But conservatives take comfort from some of the language in a book he has penned on assisted suicide.
"The idea that all human beings are intrinsically valuable and the intentional taking of human life by private persons is always wrong," Gorsuch wrote in "The Future of Assisted Suicide and Euthanasia."
They also point to his fidelity to originalism and believe it will lead him to what they believe is the right conclusion, which is that the Constitution does not protect a right to abortion.
"Judge Gorsuch is a remarkably qualified nominee with a conservative judicial philosophy and a commitment to uphold the rule of law and the Constitution," said Jay Sekulow, chief counsel of the conservative American Center for Law & Justice, in a statement.
Meanwhile, supporters of abortion rights are concerned about Gorsuch's dissent in Planned Parenthood Association of Utah v. Herbert.
After videos emerged allegedly showing Planned Parenthood officials negotiating the sale of fetal tissue, the governor of Utah announced that the conduct warranted the suspension of public funding of some programs run by the organization in the state.
A three-judge panel of Gorsuch's court ruled in favor of Planned Parenthood. After a larger panel of judges on the court declined to review the decision, Gorsuch dissented.
The case warranted rehearing, in part, because the panel relaxed Planned Parenthood's burden of proof and applied the wrong standard of review, he wrote.
"Preliminary injunction disputes like this one recur regularly and ensuring certainty in the rules governing them, and demonstrating that we will apply those rules consistently to all matters that come before us, is of exceptional importance to the law, litigants, lower courts, and future panels alike," he wrote.
Gorsuch has never ruled squarely on the Second Amendment.
Gun rights advocates note that he shares Antonin Scalia's devotion to originalism, and it was Scalia who wrote a landmark opinion holding for the first time that the Second Amendment protects an individual's right to own a handgun.
Although Gorsuch's record on the Second Amendment is sparse, gun control advocates are concerned about one case where he opined that the government should meet a tougher standard before prosecuting felons for possession of firearms.
Citing Scalia's opinion Gorsuch wrote: "the Second Amendment protects an individual's right to own firearms and may not be infringed lightly."
"Although Gorsuch's exact views on the Second Amendment remain a mystery, several of his decisions made it harder to keep guns out of the hands of felons," said Adam Winkler, a professor of Law at UCLA School of Law.
As a federal appeals court judge, Gorsuch has not ruled extensively on national security issues. But before taking the bench, while he was serving at the Justice Department as the principal deputy attorney general from 2005-2006, he was charged with reviewing and editing legal briefs and developing case strategy on a number of national security cases.
At the time, the George W. Bush administration was grappling with several post-9/11 cases and challenges to its detention policies and claims of executive power.
The department has turned over to the Senate thousands of pages of documents and emails that offer a glimpse of Gorsuch's views on several issues, including detention policies and Guantanamo Bay.
Gorsuch himself took a trip to Guantanamo Bay. Upon his return he wrote to colleagues, "If DC judges could see what we saw, I believe they would be more sympathetic to our litigating positions," he wrote in one email. He opined that some of the lawyers for the detainees had spoken about conditions at the detention facility "sometimes quite misleadingly."
In a separate document, dated November 17, 2005, Gorsuch thanked Adm. James M. McGarrah for allowing him to visit Guantanamo Bay. "I was extraordinarily impressed," Gorsuch wrote.
"You and your colleagues have developed standards and imposed a degree of professionalism that the nation can be proud of, and being able to see firsthand all that you have managed to accomplish with such a difficult and sensitive mission makes my job of helping explain and defend it before the courts all the easier," he wrote.
In another document from December 2005, he praised the fact that Secretary of State Condoleezza Rice had kicked off a European tour to defend US actions and detention policies aimed at preventing terrorist attacks.
Gorsuch wrote he was "pleased and proud" that Rice was traveling. "It is long overdue for the administration to get out publicly and defend our detention policies, trumpet their successes, while also admitting the inevitable and regrettable errors."
The email hints at Gorsuch's broader view: "We've been in a defensive crouch telling the world to buzz off for a long time; we need more of this open and positive communication. Keep it up!"
Critics of Gorsuch believe he will continue a trend they see on the court in favoring big business.
They point to a case concerning Alphonse Maddin, a driver who worked for TransAm Trucking. In 2009, the brakes on Maddin's trailer froze because of subzero temperatures. He waited for a repair but after several hours in freezing temperatures he was told by his bosses that he either had to drive away with the trailer or continue to stay on site. Instead, he unhitched his truck and drove away.
He was later fired for abandoning the trailer. He filed a complaint asserting that the firing was in violation of a federal safety law. In a 2-1 decision the 10th Circuit ruled in Maddin's favor.
Gorsuch dissented. "A trucker was stranded on the side of the road, late at night, in cold weather, and his trailer brakes were stuck," Gorsuch wrote and noted that the company "fired him for disobeying orders and abandoning its trailer and goods."
"It might be fair to ask whether TransAm's decision was a wise or kind one," he wrote. "But it's not our job to answer questions like that. Our only task is to decide whether the decision was an illegal one."
Gorsuch concluded it wasn't.
"Whatever the case, it is our job and work enough for the day to apply the law Congress did pass, not to imagine and enforce one it might have but didn't," he said.
Judith E. Schaeffer, the vice president at the progressive Constitutional Accountability Center, said Gorsuch's dissent in TransAm Trucking was "anything but a fair reading of a statute enacted to protect worker and public safety. In fact, this is one of the cases cited by members of the business community as evidence that if confirmed he will be another reliable vote for them on the pro-corporate Roberts court."
But David C. Frederick, a lawyer and long-time friend of Gorsuch, says that those people who accuse Gorsuch as being too friendly to big business might be mistaken.
"Anyone who sees Gorsuch as automatically pro-corporation should talk to the officers at Rockwell International and Dow Chemical, against whom he reinstated a $920 million jury verdict for environmental contamination at the Rocky Flats nuclear facility," he wrote.
"For the heir to Justice Scalia, perhaps the biggest question is whether he will share the late justice's somewhat idiosyncratic approach to criminal cases, which typically led to rulings in favor of the government, but with some important and significant exceptions," said Steve Vladeck, CNN Supreme Court analyst and professor of law at the University of Texas School of Law.
Gorsuch's record on the subject is mixed.
In one unusual case, Gorsuch dissented from his colleagues when they ruled against a boy in seventh grade who had disrupted a gym class by launching a series of fake burps. The student was later arrested by a school law enforcement officer.
"If a seventh grader starts trading fake burps for laughs in gym class, what's a teacher to do?" Gorsuch asked. "Order extra laps? Detention? A trip to the principal's office? Maybe. But then again, maybe that's too old school Maybe today you call a police officer."
Gorsuch said he remained unpersuaded by his colleagues' majority opinion that ruled in favor of the school.
"Arresting a now-compliant class clown for burping was going a step too far," he wrote.