Neil Gorsuch

Neil Gorsuch

Nonpartisan

Supreme Court of the United States

Tenure

2017 - Present

Years in position

7

Prior offices

United States Court of Appeals for the 10th Circuit

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Education

Bachelor's

Columbia University, 1988

Graduate

University of Oxford, 2004

Law

Harvard Law School, 1991

Personal

Birthplace

Denver, Colo.

Neil M. Gorsuch is an associate justice of the United States Supreme Court. President Donald Trump (R) nominated him to the Court on January 31, 2017, following the death of Antonin Scalia in February 2016. The U.S. Senate confirmed Gorsuch by a 54-45 vote on April 7, and he took office on April 10, 2017.

Gorsuch was a judicial clerk for Supreme Court Justices Byron White and Anthony Kennedy. His work experience included practicing commercial law at Kellogg Huber and serving as a deputy associate attorney general in the U.S. Department of Justice during the presidency of George W. Bush (R). Bush nominated Gorsuch to the United States Court of Appeals for the Tenth Circuit in 2006 and the Senate confirmed him by a unanimous voice vote.

Gorsuch is considered a reliable conservative vote on the court. In his first full year on the court, Gorsuch voted as part of a 5-4 majority on major decisions that aligned with Republican policy outcomes. The justices he joins in opinions most often are Clarence Thomas and Samuel Alito.

Where Gorsuch stands out most from his conservative colleagues is on Native American issues. SCOTUSBlog's Amy Howe wrote in June 2023 that Gorsuch "has arguably been the court’s strongest champion of Native American sovereignty." Gorsuch also split with his conservative colleagues in the 2020 case Bostock v. Clayton County, Georgia, authoring a majority opinion that upheld sexual orientation as a protected class under the Civil Rights Act of 1964.

Gorsuch called himself an originalist, aiming to interpret the constitution as it would have been understood at the time it was written. TIME published an excerpt of a book Gorsuch wrote outlining this approach. He wrote, "Whether it’s the Constitution’s prohibition on torture, its protection of speech, or its restrictions on searches, the meaning remains constant even as new applications arise." Jonathan Adler, a law professor at Case Western Reserve University, framed Gorsuch in modern political terms to the Los Angeles Times as "a maverick conservative with a libertarian streak."

Since he joined the court through the 2020 term, Gorsuch authored the majority opinion in a 5-4 decision nine times and authored a dissent in an 8-1 decision two times. Across those six terms, he has been in the majority for 83 percent of all cases.

Gorsuch’s notable opinions while on the United States Supreme Court include:

• a 5-4 majority opinion in McGirt v. Oklahoma (2019), holding that under the Indian Major Crimes Act, lands reserved for the Creek Nation in eastern Oklahoma constituted Indian Country. As a result, the state of Oklahoma could not legally try a Creek citizen for criminal conduct in state court.
• a 5-4 majority opinion in Ysleta del Sur Pueblo v. Texas (2022), holding that the Ysleta del Sur Pueblo and Alabama-Coushatta Indian Tribes of Texas Restoration Act (1987) functions as a federal ban on gaming activities occurring on tribal lands that are also banned in Texas.

Professional career

• 2005-2006: Principal deputy, associate attorney general, U.S. Department of Justice
• 1995-2005: Private practice, Kellogg, Huber, Hansen, Todd, Evans, and Figel, Washington, D.C.

• 1998-2005: Partner
• 1995-1998: Associate

• 1993-1994: Law clerk, Hon. Byron White and Hon. Anthony Kennedy, Supreme Court of the United States
• 1991-1992: Law clerk, Hon. David Sentelle, United States Court of Appeals for the District of Columbia Circuit

Early life and education

Gorsuch was born on August 29, 1967, in Denver, Colorado. Gorsuch's mother, Anne Gorsuch Burford, was the first female head of the Environmental Protection Agency under President Ronald Reagan. Gorsuch received his B.A. from Columbia University in 1988, his J.D. from Harvard Law School in 1991, and his D.Phil. from the University of Oxford in 2004. While at Columbia, Gorsuch co-founded a newspaper (The Federalist) and a magazine (The Morningside Review).

Approach to the law

Oyez, a law project created by Cornell’s Legal Information Institute, Justia, and Chicago-Kent College of Law, identified Gorsuch as a Constitutional originalist, meaning he believes the Constitution should be interpreted as it was originally written. It also noted that Gorsuch is "known for his criticism of the existing legal standard by which the Court reviews the actions of executive agencies, and for his tendency to favor state power over federal."

In July 2019, David Savage of the Los Angeles Times called Gorsuch "a different kind of conservative." "He is a libertarian who is quick to oppose unchecked government power, even in the hands of prosecutors or the police. And he is willing to go his own way and chart a course that does not always align with the traditional views on the right or the left," Savage wrote.

Martin-Quinn score

Gorsuch's Martin-Quinn score following the 2022-2023 term was 1.08, making him the third-most conservative justice on the court at that time. Martin-Quinn scores were developed by political scientists Andrew Martin and Kevin Quinn from the University of Michigan, and measure the justices of the Supreme Court along an ideological continuum. The further from zero on the scale, the more conservative (>0) or liberal (<0) the justice. The chart below details every justice's Martin-Quinn score for the 2022-2023 term.

Judicial career

United States Supreme Court (2017 - present)

See also: Federal judges nominated by Donald Trump and Neil Gorsuch confirmation hearings

Nomination Tracker
Nominee Information
Name: Neil M. Gorsuch
Court: Supreme Court of the United States
Progress
Confirmed 66 days after nomination.
ANominated: January 31, 2017
AABA Rating: Unanimously Well Qualified
Questionnaire: Questionnaire
AHearing: March 20-23, 2017
QFRs: QFRs (Hover over QFRs to read more)
AReported: April 3, 2017
AConfirmed: April 7, 2017
AVote: 54-45

On January 31, 2017, Gorsuch was nominated to the Supreme Court of the United States by President Donald Trump (R) to a seat vacated by Justice Antonin Scalia, who died in judicial service. President Trump said regarding the nomination,

“

I am proud to announce the nomination of Judge Neil Gorsuch for Justice of the Supreme Court ... This has been the most transparent and most important Supreme Court selection process in the history of our country and I wanted the American people to have a voice in this nomination. Judge Gorsuch has a superb intellect, an unparalleled legal education, and a commitment to interpreting the Constitution according to its text. He will make an incredible Justice as soon as the Senate confirms him.

”

The American Bar Association rated Gorsuch Unanimously Well Qualified for the nomination.

Confirmation hearings on Gorsuch's nomination before the Senate Judiciary Committee were held from March 20-23, 2017. Gorsuch's nomination was reported by Senate Judiciary Committee chairman Chuck Grassley (R-Iowa) on April 3, 2017.

On April 4, 2017, in a 55-44 vote, the U.S. Senate passed a procedural motion to begin debate on Gorsuch's nomination to the U.S. Supreme Court on the floor of the Senate. Four Democratic senators—Michael Bennet (D-Colo.), Joe Donnelly (D-Ind.), Heidi Heitkamp (D-N.D.), and Joe Manchin (D-W.Va.)—voted with 51 of 52 Republican senators to pass the motion. Senator Johnny Isakson (R-Ga.) did not vote. In a related move, Senate majority leader Mitch McConnell (R-Ky.) filed a motion to invoke cloture, which would limit debate on the nomination. Under Senate rules, action on Sen. McConnell's motion could not be taken until Thursday, April 6, 2017. In the interim, senators debated the nomination on the floor.

On April 5, the Senate continued its floor debate over the nomination. U.S. Sen. Jeff Merkley (D-Ore.) spoke on the floor for 15 hours and 28 minutes, starting at 6:45 p.m. the previous day. According to a report in Roll Call, Merkley’s was the eighth-longest speech in the Senate since 1900. After Merkley’s speech ended and legislative business began on Wednesday, the Senate alternated 60 minute intervals between the majority and the minority to debate the nomination.

On April 6, the Senate failed to invoke cloture on a Democratic filibuster of Gorsuch's nomination. Sixty senators were required to agree to invoke cloture. Fifty-five senators—51 Republicans and four Democrats—voted to invoke cloture. The Democratic senators who voted with the Republicans were Michael Bennet (D-Colo.), Joe Donnelly (D-Ind.), Heidi Heitkamp (D-N.D.), and Joe Manchin (D-W. Va.). CBS News reported that Bennet was under pressure to support Gorsuch's nomination because Gorsuch was from Colorado. Senate majority leader Mitch McConnell (R-Ky.) was the only Republican to vote against invoking cloture, using it as a procedural mechanism to begin the process of changing the rules for closing debate on the nomination. McConnell raised a point of order, suggesting that debate on nominations be ended by a simple majority of votes rather than 60 votes.

Eventually, a 52-48 majority along party lines voted against retaining the 60-vote threshold to end debate on Supreme Court nominations, opting instead for a simple majority being required to end debate. The change installing a rule lowering the threshold for ending debate from 60 senators to 51 senators is referred to as the nuclear option. Under the new threshold, the Senate subsequently voted to end debate on Gorsuch's nomination.

On Friday, April 7, Senator McConnell moved to close debate on the nominee. That motion passed. The Senate subsequently voted to confirm Gorsuch on a recorded 54-45 vote. Three Democratic senators joined with 51 Republican senators in voting to confirm Gorsuch: Joe Donnelly (Ind.), Heidi Heitkamp (N.D.), and Joe Manchin (W. Va.). Senator Johnny Isakson (R-Ga.) did not vote on the nomination. Gorsuch took his judicial oaths of office on Monday, April 10, 2017. Gorsuch was the seventh justice to have once clerked at the Supreme Court, but the first to serve on the court with the justice with whom he clerked. He clerked for Justice Byron White, who was the first Supreme Court clerk to serve as a justice, and for Justice Anthony Kennedy, who was the senior associate justice on the court at the time of Gorsuch's confirmation.

Administrative State
Five Pillars of the Administrative State
• Nondelegation • Judicial deference • Executive control • Procedural rights • Agency dynamics
Click here for more coverage of the administrative state on Ballotpedia

Tenth Circuit Court of Appeals (2006-2017)

Gorsuch was nominated to the United States Court of Appeals for the 10th Circuit by President George W. Bush on May 10, 2006, to a seat vacated by David Ebel. The American Bar Association rated Gorsuch Unanimously Well Qualified for the nomination. Hearings on Gorsuch's nomination were held on June 21, 2006, and his nomination was reported by U.S. Sen. Arlen Specter (R-Pa.) on July 13, 2006. Gorsuch was confirmed on a voice vote of the U.S. Senate on July 20, 2006, and he received his commission on August 8, 2006. He was 38 years old when he was confirmed to the circuit court. He resigned from the court on April 9, 2017, upon his elevation to the U.S. Supreme Court. He was succeeded in this position by Judge Allison Eid.

Judge Gorsuch's nomination to the Tenth Circuit Court of Appeals did not appear to generate much negative reaction from outside interests. The Denver Post reported on Gorsuch's confirmation that "Gorsuch’s nomination was approved on a voice vote. Individual votes weren’t tallied because the nomination wasn’t deemed controversial."

After Gorsuch's confirmation, Above the Law contributor David Lat said, "Judge Neil Gorsuch is one to watch. He’s brilliant, he’s young, and he’s incredibly well-connected. Look for him to rise through the ranks of Supreme Court feeder judges in the years to come — and, perhaps, to be nominated to the Court himself someday."

Supreme Court statistics

Opinions by year

Below is a table of the number of opinions, concurrences, and dissents that Gorsuch has issued since joining the Supreme Court, according to the Supreme Court record and from the annual Stat Pack produced by the website SCOTUSBlog. This information is updated annually at the end of each term. Information for the 2022 term is from a dataset provided by Dr. Adam Feldman, author of Empirical SCOTUS. Data for the 2022-2023 term does not include concurrences and dissents in part.

Opinions written by year, Neil Gorsuch
	2016-2017	2017-2018	2018-2019	2019-2020	2020-2021	2021-2022	2022-2023
Opinions	1	7	8	7	6	7	7
Concurrences	2	4	4	3	9	5	10
Dissents	2	6	10	3	3	9	3
Totals	5	17	22	13	18	21	20

Justice agreement

In the 2022-2023 term, Gorsuch had the highest agreement rate with Brett Kavanaugh. Gorsuch had the lowest agreement rate with Ketanji Brown Jackson. This does not include agreements in part. In the 2020-2021 term, Gorsuch had the highest agreement rate with Samuel Alito and Amy Coney Barrett. Gorsuch had the lowest agreement rate with Sonia Sotomayor.

The table below highlights Gorsuch's agreement rate with each justice on the court during that term.

Neil Gorsuch agreement rates by term, 2017 - Present
Justice	2017-2018	2018-2019	2019-2020	2020-2021	2021-2022	2022-2023
John Roberts	83%	68%	85%	81%	73%	89%
Anthony Kennedy	86%	N/A	N/A	N/A	N/A	N/A
Clarence Thomas	81%	81%	80%	88%	78%	76%
Ruth Bader Ginsburg	58%	63%	62%	N/A	N/A	N/A
Stephen Breyer	61%	54%	66%	66%	54%	N/A
Samuel Alito	83%	74%	79%	88%	81%	87%
Sonia Sotomayor	55%	63%	64%	58%	52%	71%
Elena Kagan	64%	65%	67%	70%	56%	69%
Brett Kavanaugh	N/A	70%	88%	87%	73%	82%
Amy Coney Barrett	N/A	N/A	N/A	91%	81%	80%
Ketanji Brown Jackson	N/A	N/A	N/A	N/A	N/A	69%

Frequency in majority

In the 2022-2023 term, Gorsuch was in the majority in 82 percent of decisions. He was in the majority more often than two other justices. In the 2021-2022 term, Gorsuch was in the majority in 75 percent of decisions. He was in the majority more often than three other justices.

Since he joined the court during the 2016-2017 term, Gorsuch was in the majority more than 80 percent in five of the seven terms. Across those terms, he has been in the majority for 82 percent of all cases.

Noteworthy cases

See also: Noteworthy cases heard by current justices on the U.S. Supreme Court

The noteworthy cases listed in this section include any case where the justice authored a 5-4 majority opinion or an 8-1 dissent. Other cases may be included in this section if they set or overturn an established legal precedent, are a major point of discussion in an election campaign, receive substantial media attention related to the justice's ruling, or based on our editorial judgment that the case is noteworthy. For more on how we decide which cases are noteworthy, click here.

Since he joined the court through the 2022-2023 term, Gorsuch authored the majority opinion in a 5-4 decision fourteen times and authored a dissent in an 8-1 decision six times. The table below details these cases by year.

Neil Gorsuch noteworthy cases
Year	5-4 majority opinion	8-1 dissenting opinion
Total	13	6
2022	3	1
2021	1	3
2020	0	0
2019	1	0
2018	3	1
2017	5	1

U.S. Supreme Court noteworthy opinions

National Pork Producers Council v. Ross (2023)

See also: National Pork Producers Council v. Ross

Justice Gorsuch authored a 5-4 majority opinion in National Pork Producers Council v. Ross, dismissed the challenge against California’s Proposition 12. Gorsuch was joined in the majority by Justices Clarence Thomas, Sonia Sotomayor, Elena Kagan, Amy Coney Barrett.

“	Petitioners would have us cast aside caution for boldness. They have failed—repeatedly—to persuade Congress to use its express Commerce Clause authority to adopt a uniform rule for pork production. And they disavow any reliance on this Court’s core dormant Commerce Clause teachings focused on discriminatory state legislation. Instead, petitioners invite us to endorse two new theories of implied judicial power. They would have us recognize an “almost per se” rule against the enforcement of state laws that have “extraterritorial effects”—even though this Court has recognized since Gibbons that virtually all state laws create ripple effects beyond their borders. Alternatively, they would have us prevent a State from regulating the sale of an ordinary consumer good within its own borders on nondiscriminatory terms—even though the Pike line of cases they invoke has never before yielded such a result. Like the courts that faced this case before us, we decline both of petitioners’ incautious invitations.	”
—Justice Neil Gorsuch

Bittner v. United States (2023)

See also: Bittner v. United States

Justice Gorsuch authored a 5-4 majority opinion in Bittner v. United States. The court reversed and remanded the decision of the United States Court of Appeals for the 5th Circuit in a 5-4 ruling, holding that the "BSA treats the failure to file a legally compliant report as one violation carrying a maximum penalty of $10,000, not a cascade of such penalties calculated on a per-account basis."Justice Neil Gorsuch delivered the majority opinion of the court. Justice Amy Coney Barrett filed a dissenting opinion, joined by Justices Sonia Sotomayor, Clarence Thomas, and Elena Kagan. Click here for more information about the ruling.

“	Best read, the BSA treats the failure to file a legally compliant report as one violation carrying a maximum penalty of $10,000, not a cascade of such penalties calculated on a per-account basis. Because the Fifth Circuit thought otherwise, we reverse its judgment and remand the case for further proceedings consistent with this opinion.	”
—Justice Neil Gorsuch

Mallory v. Norfolk Southern Railway Co. (2023)

See also: Mallory v. Norfolk Southern Railway Co.

Justice Gorsuch authored a 5-4 majority opinion in Mallory v. Norfolk Southern Railway Co., holding that Pennsylvania Fire Ins. Co. of Philadelphia v. Gold Issue Mining & Milling Co., 243 U. S. 93 controls the case and remains the law. Gorsuch was joined in the majority by Justices Clarence Thomas, Samuel Alito, Sonia Sotomayor, and Ketanji Brown Jackson.

“	Not every case poses a new question. This case poses a very old question indeed—one this Court resolved more than a century ago in Pennsylvania Fire. Because that decision remains the law, the judgment of the Supreme Court of Pennsylvania is vacated, and the case is remanded.	”
—Justice Neil Gorsuch

No right to abortion under the U.S. Constitution (2022)

See also: Dobbs v. Jackson Women’s Health Organization

Gorsuch joined the 6-3 majority opinion in Dobbs v. Jackson Women’s Health Organization, holding that the U.S. Constitution did not provide a right to abortion. Associate Justice Samuel Alito authored the majority opinion, which was also joined by Associate Justices Clarence Thomas, Brett Kavanaugh, and Amy Coney Barrett. Chief Justice John Roberts joined with the majority to uphold Mississippi's abortion law but not to overturn Roe and Casey. Alito wrote:

“	We hold that Roe and Casey must be overruled. The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision, including the one on which the defenders of Roe and Casey now chiefly rely—the Due Process Clause of the Fourteenth Amendment. That provision has been held to guarantee some rights that are not mentioned in the Constitution, but any such right must be “deeply rooted in this Nation’s history and tradition” and “implicit in the concept of ordered liberty.” Washington v. Glucksberg, 521 U. S. 702, 721 (1997) (internal quotation marks omitted). The right to abortion does not fall within this category.	”
—Justice Alito

Gaming regulation on tribal lands, sovereign authority of Native American tribal nations (2022)

See also: Ysleta del Sur Pueblo v. Texas

Justice Gorsuch authored a 5-4 majority opinion in Ysleta del Sur Pueblo v. Texas (2022), holding that the Ysleta del Sur Pueblo and Alabama-Coushatta Indian Tribes of Texas Restoration Act (1987) functions as a federal ban on gaming activities occurring on tribal lands that are also banned in Texas. Gorsuch was joined in the majority by Justices Stephen Breyer, Sonia Sotomayor, Elena Kagan, and Amy Coney Barrett.

In the court's majority opinion, Justice Gorsuch wrote:

“	Native American Tribes possess “inherent sovereign authority over their members and territories.” Oklahoma Tax Comm’n v. Citizen Band Potawatomi Tribe of Okla., 498 U. S. 505, 509 (1991). Under our Constitution, treaties, and laws, Congress too bears vital responsibilities in the field of tribal affairs. See, e.g., United States v. Lara, 541 U. S. 193, 200 (2004). From time to time, Congress has exercised its authority to allow state law to apply on tribal lands where it otherwise would not. See Santa Clara Pueblo v. Martinez, 436 U. S. 49, 60 (1978); Bryan v. Itasca County, 426 U. S. 373, 392 (1976); Rice v. Olson, 324 U. S. 786, 789 (1945). In this case, Texas contends that Congress expressly ordained that all of its gaming laws should be treated as surrogate federal law enforceable on the Ysleta del Sur Pueblo Reservation. In the end, however, we find no evidence Congress endowed state law with anything like the power Texas claims. ... Texas contends that Congress in the Restoration Act has allowed all of its state gaming laws to act as surrogate federal law on tribal lands. The Fifth Circuit took the same view in Ysleta I and in the proceedings below. That understanding of the law is mistaken. The Restoration Act bans as a matter of federal law on tribal lands only those gaming activities also banned in Texas. To allow the Fifth Circuit to revise its precedent and reconsider this case in the correct light, its judgment is vacated, and the case is remanded for further proceedings consistent with this opinion.	”
—Justice Neil Gorsuch

State court jurisdiction in lands deemed to be Indian Country (2019)

See also: McGirt v. Oklahoma

Gorsuch authored a 5-4 majority opinion in McGirt v. Oklahoma, holding that under the Indian Major Crimes Act, lands reserved for the Creek Nation in eastern Oklahoma constituted Indian Country. As a result, the state of Oklahoma could not legally try a Creek citizen for criminal conduct in state court. Gorsuch was joined in the majority by Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan.

“	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. ... But, in seeking to defend the state-court judgment below, Oklahoma has put aside whatever procedural defenses it might have and asked us to confirm that the land once given to the Creeks is no longer a reservation today. ... Under our Constitution, States have no authority to reduce federal reservations lying within their borders. ... Likewise, courts have no proper role in the adjustment of reservation borders. ... The relevant statute expressly contemplates private land ownership within reservation boundaries. Nor under the statute’s terms does it matter whether these individual parcels have passed hands to non-Indians. To the contrary, this Court has explained repeatedly that Congress does not disestablish a reservation simply by allowing the transfer of individual plots, whether to Native Americans or others. ... Now, the State points to historical practices and demographics ... to prove disestablishment. ... But Oklahoma does not point to any ambiguous language in any of the relevant statutes that could plausibly be read as an Act of disestablishment. Nor may a court favor contemporaneous or later practices instead of the laws Congress passed. As Solem explained, “[o]nce a block of land is set aside for an Indian reservation and no matter what happens to the title of individual plots within the area, the entire block retains its reservation status until Congress explicitly indicates otherwise.” 465 U. S., at 470 (citing United States v. Celestine, 215 U. S. 278, 285 (1909)). ... In conjunction with the MCA, §1151(a) not only sends to federal court certain major crimes committed by Indians on reservations. Two doors down, in §1151(c), the statute does the same for major crimes committed by Indians on “Indian allotments, the Indian titles of which have not been extinguished.” ... The MCA applies to Oklahoma according to its usual terms: Only the federal government, not the State, may prosecute Indians for major crimes committed in Indian country.	”
—Justice Gorsuch

Previous noteworthy opinions

• 2018-2019 term (Click to expand)
  
  

  Death sentence method (2018)

  See also: Bucklew v. Precythe

  Gorsuch authored a 5-4 majority opinion in this case ruling that an inmate did not meet criteria under previous U.S. Supreme Court rulings requiring a death-row inmate to show (1) that a feasible and readily implemented alternative method existed and (2) that the state refused to use the method without a good reason. Gorsuch was joined in the majority by Chief Justice Roberts and Justices Thomas, Alito, and Kavanaugh. Gorsuch wrote:

  “

  In sum, even if execution by nitrogen hypoxia were a feasible and readily implemented alternative to the State’s chosen method, Mr. Bucklew has still failed to present any evidence suggesting that it would significantly reduce his risk of pain. For that reason as well, the State was entitled to summary judgment on Mr. Bucklew’s Eighth Amendment claim.

  ”

  Residual clause unconstitutional (2018)

  See also: United States v. Davis

  Gorsuch authored a 5-4 majority opinion in this case rejecting the government's argument that lower courts should adopt a case-specific approach when considering cases involving crimes of violence under §924(c)(3)(B). It ruled that the rule, known as the residual clause, was unconstitutionally vague. Gorsuch was joined in the majority by Justices Ginsburg, Breyer, Sotomayor, and Kagan. Gorsuch wrote:

  “

  It might have been a good idea for Congress to have written a residual clause for §924(c) using a case-specific approach. It doesn’t tell us whether Congress actually wrote such a clause. To answer that question, we need to examine the statute’s text, context, and history. And when we do that, it becomes clear that the statute simply cannot support the government's newly minted case-specific theory.

  ”

  Mandatory sentence unconstitutional (2018)

  See also: United States v. Haymond

  Gorsuch authored a 5-4 majority opinion in this case ruling that portions of 18 U.S.C. 3583(k) requiring a judge to sentence someone violating supervised release to five years in prison was unconstitutional. Gorsuch was joined in the majority by Justices Ginsburg, Sotomayor, and Kagan. Justice Breyer wrote a concurring opinion. Gorsuch wrote:

  “

  Only a jury, acting on proof beyond a reasonable doubt, may take a person’s liberty. ... Yet in this case a congressional statute compelled a federal judge to send a man to prison for a minimum of five years without empaneling a jury of his peers or requiring the government to prove his guilt beyond a reasonable doubt. As applied here, we do not hesitate to hold that the statute violates the Fifth and Sixth Amendments.

  ”

Tenth Circuit opinions

Chevron deference (2016)

See also: United States Court of Appeals for the 10th Circuit (Gutierrez-Brizuela v. Lynch, No. 14-9585)

Writing for a three-judge panel including Judges Robert Bacharach and Monroe McKay, Judge Gorsuch remanded an appeal to the Board of Immigration Appeals (Board) for further consideration after the Board incorrectly applied Tenth Circuit precedent when reviewing Gutierrez-Brizuela’s immigration status. The panel held that the Board could not apply its rules retroactively in exercising its agency interpretation over a judicial precedent. An agency’s reasonable interpretation of ambiguous statutes is often afforded controlling weight before courts under what is known as Chevron deference, pursuant to the U.S. Supreme Court’s ruling in Chevron v. Natural Resources Defense Council. In addition to his opinion for the panel, Judge Gorsuch wrote a concurring opinion in which he expressed his own personal views on Chevron deference. He wrote:

“	What would happen in a world without Chevron? If this goliath of modern administrative law were to fall? Surely Congress could and would continue to pass statutes for executive agencies to enforce. And just as surely agencies could and would continue to offer guidance on how they intend to enforce those statutes. The only difference would be that courts would then fulfill their duty to exercise their independent judgment about what the law is. Of course, courts could and would consult agency views and apply the agency’s interpretation when it accords with the best reading of a statute. But 'de novo' judicial review of the law’s meaning would limit the ability of an agency to alter and amend existing law. It would avoid the due process and equal protection problems of the kind documented in our decisions. It would promote reliance interests by allowing citizens to organize their affairs with some assurance that the rug will not be pulled from under them tomorrow, the next day, or after the next election. And an agency’s recourse for a judicial declaration of the law’s meaning that it dislikes would be precisely the recourse the Constitution prescribes — an appeal to higher judicial authority or a new law enacted consistent with bicameralism and presentment. We managed to live with the administrative state before Chevron. We could do it again. Put simply, it seems to me that in a world without Chevron very little would change.	”
—Neil Gorsuch (August 23, 2016)

Dormant commerce clause (2015)

See also: United States Court of Appeals for the 10th Circuit (Energy and Environment Legal Institute v. Epel, No. 14-1216)

Writing for a three-judge panel including Judges Timothy Tymkovich and David Ebel, Judge Gorsuch affirmed a ruling of the United States District Court for the District of Colorado holding that the district court was correct to reject the Energy and Environment Legal Institute’s (ELLI) reasoning that a Colorado mandate for renewable energy violated what is known as the dormant commerce clause. Under dormant commerce clause jurisprudence, state laws can be deemed unconstitutional if they are interpreted as violating the interstate commerce clause of the U.S. Constitution. In this case, Judge Gorsuch rejected ELLI’s argument that dormant commerce clause jurisprudence necessitated striking the Colorado mandate. In Judge Gorsuch’s words, "Colorado’s mandate … just doesn’t share any of the three essential characteristics that mark those cases: it 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. EELI doesn’t even seriously attempt to suggest otherwise." In a review of this opinion, Eric Citron of SCOTUSBlog suggested that "Gorsuch’s personal constitution seems to require him to write clearly about the many unclear aspects of the doctrine, his opinion plainly takes some joy in the act of demonstrating that not only does the dormant commerce clause not apply — the doctrine also doesn’t make much sense."

Religious liberty under the Affordable Care Act (2013)

See also: United States Court of Appeals for the 10th Circuit (Hobby Lobby v. Sebelius et al., No. 12-6294)

Judge Gorsuch filed a concurring opinion in this case, joined by Judges Timothy Tymkovich and Paul Kelly, in which Judge Gorsuch presented his rationale as to why the store owners of Hobby Lobby, the Green family, as individuals, were entitled to injunctive relief against the mandates of the Affordable Care Act. In his concurrence, Judge Gorsuch said:

“	As the Greens explain their complaint, the ACA’s mandate requires them to violate their religious faith by forcing them to lend an impermissible degree of assistance to conduct their religion teaches to be gravely wrong. No one before us disputes that the mandate compels Hobby Lobby and Mardel to underwrite payments for drugs or devices that can have the effect of destroying a fertilized human egg. No one disputes that the Greens’ religion teaches them that the use of such drugs or devices is gravely wrong. It is no less clear from the Greens’ uncontested allegations that Hobby Lobby and Mardel cannot comply with the mandate unless and until the Greens direct them to do so — that they are the human actors who must compel the corporations to comply with the mandate. And it is this fact, the Greens contend, that poses their problem. As they understand it, ordering their companies to provide insurance coverage for drugs or devices whose use is inconsistent with their faith itself violates their faith, representing a degree of complicity their religion disallows. In light of the crippling penalties the mandate imposes for failing to comply with its dictates — running as high as $475 million per year — the Greens contend they confront no less than a choice between exercising their faith or saving their business. No doubt, the Greens’ religious convictions are contestable. Some may even find the Greens’ beliefs offensive. But no one disputes that they are sincerely held religious beliefs ... The Greens’ claim in this case closely parallels claims the Supreme Court vindicated in Thomas and Lee. In Thomas, the plaintiff, a faithful Jehovah’s Witness, was willing to participate in manufacturing sheet steel he knew might find its way into armaments, but he was unwilling to work on a fabrication line producing tank turrets ... That’s the line he understood his faith to draw when it came to complicity in war-making, an activity itself forbidden by his faith. The Supreme Court acknowledged this line surely wasn’t the same many others would draw, and that it wasn’t even necessarily the same line other adherents to the plaintiff’s own faith might always draw. But the Court proceeded to hold that it was not, is not, the place of courts of law to question the correctness or the consistency of tenets of religious faith, only to protect the exercise of faith ... No different result can reasonably follow here. In Lee, a devout Amish employer refused to pay social security taxes on behalf of his employees ... The employer’s faith taught that it is sinful to accept governmental assistance. By being forced to pay social security taxes on behalf of his employees, the employer argued, he was being forced to create for his employees the possibility of accepting governmental assistance later. This much involvement or complicity, the employer argued, was itself sinful under the teachings of his religion. The government argued there — much as the government argues here — that the enforcement of its mandate on the employer would 'not threaten the integrity of the [employer’s] religious belief' because the employer didn’t have to accept social security benefits himself and his employees could choose for themselves whether to do so ... The Supreme Court squarely rejected this argument in language no less applicable to our case, explaining that it is not within 'the judicial function and competence...to determine whether the Government has the proper interpretation of the Amish faith' ... As the Greens describe it, it is their personal involvement in facilitating access to devices and drugs that can have the effect of destroying a fertilized human egg that their religious faith holds impermissible. And as we have seen, 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. Whether an act of complicity is or isn’t 'too attenuated' from the underlying wrong is sometimes itself a matter of faith we must respect. Thomas and Lee teach no less.	”
—Neil Gorsuch (June 27, 2013)

Noteworthy events

Inclusion on Trump's 2016 shortlist

See also: Process to fill the vacated seat of Justice Antonin Scalia

See also: Complete list of Donald Trump's potential nominees to the U.S. Supreme Court

On September 23, 2016, Gorsuch was included in a second list of individuals Republican presidential candidate Donald Trump said he "would consider as potential replacements for Justice Scalia at the United States Supreme Court."

According to a statement attributed to Trump at at that time, and released via his campaign website,

“

We have a very clear choice in this election. The freedoms we cherish and the constitutional values and principles our country was founded on are in jeopardy. The responsibility is greater than ever to protect and uphold these freedoms and I will appoint justices, who like Justice Scalia, will protect our liberty with the highest regard for the Constitution. This list is definitive and I will choose only from it in picking future Justices of the United States Supreme Court. I would like to thank the Federalist Society, The Heritage Foundation and the many other individuals who helped in composing this list of twenty-one highly respected people who are the kind of scholars that we need to preserve the very core of our country, and make it greater than ever before.

”

Reaction to inclusion

Several groups expressed a positive reaction to Gorsuch's inclusion on Trump's list. Carrie Severino, policy director and chief counsel for the Judicial Crisis Network, said of Gorsuch, "He has a clear record of a consistent judicial philosophy and applying that in action. ... One of the real values here is he’s someone with solid record and we’re able to assess his experience. Conservatives are still concerned about the 'David Souter effect.'"

Above the Law managing editor David Lat, who considered Gorsuch a potential nominee for the U.S. Supreme Court at the time of his confirmation to the Tenth Circuit, said, "The other thing to remember ... is that Donald Trump, when he issued his list, thanked the Heritage Foundation and Federalist Society for their input. I don’t think they would have given their stamp of approval to somebody they thought was going to be another Souter."

In a December 2016 study, scholars and attorneys Jeremy Kidd, Riddhi Sohan Dasgupta, Ryan Walter, and James Phillips identified Gorsuch as one of the two most natural successors to Justice Scalia based on a measure of their own design. Among Trump's known potential nominees, only Judge Thomas Lee of the Supreme Court of Utah had a higher score on the authors' measure.

In a December 2016 piece in The Denver Post, law professor Justin Marceau described Gorsuch as follows:

“

a predictably socially conservative judge who tends to favor state power over federal power ... a judge who, while perhaps not as combative in personal style as Justice Scalia, is perhaps his intellectual equal ... and almost certainly his equal on conservative jurisprudential approaches to criminal justice and social justice issues that are bound to keep coming up in the country.

”

Some groups that opposed legal access to abortion were critical of Gorsuch, believing he had been too soft on abortion issues. Andrew Schlafly—son of Phyllis Schlafly and president of the Legal Center for the Defense of Life—stated that Gorsuch "won't be pro-life on the bench ... because he doesn't invoke the term 'unborn child' in his decisions or public comments."

A January 2017 analysis of Judge Gorsuch by the SCOTUSBlog website identified parallels between Gorsuch's and Scalia's legal approaches:

“

With perhaps one notable area of disagreement, Judge Gorsuch’s prominent decisions bear the comparison out. For one thing, the great compliment that Gorsuch’s legal writing is in a class with Scalia’s is deserved: Gorsuch’s opinions are exceptionally clear and routinely entertaining; he is an unusual pleasure to read, and it is always plain exactly what he thinks and why. Like Scalia, Gorsuch also seems to have a set of judicial/ideological commitments apart from his personal policy preferences that drive his decision-making. He is an ardent textualist (like Scalia); he believes criminal laws should be clear and interpreted in favor of defendants even if that hurts government prosecutions (like Scalia); he is skeptical of efforts to purge religious expression from public spaces (like Scalia); he is highly dubious of legislative history (like Scalia); and he is less than enamored of the dormant commerce clause (like Scalia). In fact, some of the parallels can be downright eerie.

”

Media and writings

In addition to his published pieces as an undergraduate, prior to his career as a federal judge, Gorsuch authored an opinion editorial on the use of litigation to achieve policy objectives.

While in private practice, he wrote amicus curiae briefs in three cases argued before the U.S. Supreme Court: California Public Employees' Retirement System v. Fezlen (1999), Devlin v. Scardelletti (2002), and Dura Pharmaceuticals v. Broudo (2005).

Gorsuch wrote pieces on the subject of physician-assisted suicide in academic journals including the Harvard Journal of Law and Public Policy (2000) and the Wisconsin Law Review (2004). He also wrote a book on the subject, The Future of Assisted Suicide and Euthanasia, in 2009. He also co-authored a published work on the constitutionality of state-imposed term limits in the Hofstra Law Review in 1991. He co-authored a second book, The Law of Judicial Precedent, in 2016.

In 2013, Judge Gorsuch gave the 13th Annual Barbara K. Olson Memorial Lecture. The lecture was established in 2001 in honor of Barbara Olson, wife of former U.S. solicitor general Ted Olson, who died in the attacks of September 11, 2001. The lecture is hosted by the Federalist Society.

Judge Gorsuch gives the Barbara K. Olson Memorial Lecture (2013)

See also

• Supreme Court of the United States
• Supreme Court cases, October term 2020-2021
• Supreme Court vacancy, 2017: An overview
• Neil Gorsuch confirmation hearings
• U.S. senators on Neil Gorsuch's nomination
• United States Court of Appeals for the 10th Circuit

External links

• Supreme Court of the United States website
• Judge Gorsuch's biography from the Tenth Circuit Court of Appeals
• Judge Gorsuch's biography from the Federal Judicial Center
• Profile by Oyez
• Profile from the Supreme Court Historical Society

Footnotes

Political offices
Preceded by -	Supreme Court of the United States 2017-Present	Succeeded by -
Preceded by -	United States Court of Appeals for the 10th Circuit 2006-2017	Succeeded by -