SPECIAL INTEREST COURT: Under Chief Justice Roberts, the Supreme Court has been swinging dramatically in favor of the rights of big money special interests over those of individual Americans.

  • In Citizens United, the Court unleashed unlimited corporate spending in elections, drowning out the voices of ordinary Americans. 
  • In a series of cases, the Court put new restrictions on class actions, making it hard for individual consumers to band their voices together against powerful special interests.
  • The Court has also restricted the ability of individuals to access the courtroom by raising pleading standards and forcing litigants into arbitration.

Americans know this is true – in fact, more than half of them believe that the Court treats corporations better than people. And empirical studies back this up; a study by conservative Judge Richard Posner found that the Roberts Court is the most favorable to corporations in half a century.

SPECIAL INTEREST GORSUCH: Judge Gorsuch would not only lock in this disturbing trend, his record suggests he will exacerbate it, directing further power into the hands of large big money special interests and away from the workers who most need the protection of the courts.

 Judge Gorsuch subscribes to the idea that corporations are people.

He joined the decision in the Hobby Lobby case that held that “corporations can be ‘persons’ exercising religion,” and voted to protect the rights of those corporations to have religious beliefs over the rights of employees to make personal health care decisions.  

 His work in private practice clearly demonstrated that he was on the side of big business. 

  • Reuters reported, “As a lawyer in private practice for a decade, President Donald Trump’s U.S. Supreme Court nominee Neil Gorsuch often fought on behalf of business interests, including efforts to curb securities class action lawsuits, experience that could mold his thinking if he is confirmed as a justice.”
  • He represented the U.S. Chamber of Commerce in its efforts to limit class actions. He has shown disdain for class actions, which are often the only mechanism by which individuals who have suffered harms to band together against the corporations who have hurt them.
  • He later wrote that a securities class action is merely a “free ride to fast riches” for plaintiffs’ lawyers.

 On the bench, Judge Gorsuch repeatedly sided with insurance companies that wanted to deny disability benefits and employers who wanted to cut pension benefits to employees.

  • He wrote an opinion saying an insurance company could deny benefits to someone who had suffered a spinal injury on the job as long as it could argue that it had a “reasoned basis” for doing so.
  • He wrote an opinion upholding termination of disability benefits to someone who had debilitating abdominal disease because a labor market survey (which the plaintiff claimed was fraudulent) “indicated that sufficiently high earning jobs would be available to Mr. Niedens given his medical limitations, including his need for immediate access to a bathroom.” Judge Gorsuch’s refusal to take a sick employee’s word that his debilitating and embarrassing disease makes it impossible for him to find work is particularly disturbing in light of his willingness in Hobby Lobby to accord unquestioning deference to the religious beliefs of corporations.
  • He voted to uphold an insurance company’s denial of benefits to someone suffering pulmonary and coronary disease without a jury trial
  • He voted to uphold a company’s decision to significantly lower monthly pension benefits and specifically to treat older employees more harshly than younger ones.
    • In the same case, which came back to his court when it was determined that the company illegally gave improper notice about the benefit reductions, he wrote a decision for the court that held that, even though the company’s behavior had violated the law, the pensioners were not entitled to damages.

 In employment discrimination cases, Bloomberg found he has sided with employers 66% of the time (8 out of 12 cases); in one of the few cases he sided with an employee, it was a Republican woman who alleged she was fired for being a conservative.  

 He has regularly sided with employers in suits over workers being fired.

  • He was the lone dissent in a case in which the majority said a truck driver who refused to drive under hazardous conditions and became a whistleblower was wrongfully terminated.  Gorsuch would have upheld the firing since the driver didn’t refuse to drive at all, he just refused to drive in the dangerous way he was instructed.
  • He ruled against an employee seeking job protection under the Rehabilitation Act as she sought cancer treatment, arguing “The Rehabilitation Act seeks to prevent employers from callously denying reasonable accommodations that permit otherwise qualified disabled persons to work — not to turn employers into safety net providers for those who cannot work.” (Hwang 2014)

 He has objected to an NLRB award of backpay and criticized the NLRB for wanting to punish employers for unlawful actions. 

  • Specifically, he dissented from a decision upholding an NLRB backpay order, writing “In the end, it’s difficult to come away from this case without wondering if the Board’s actions stem from a frustration with the current statutory limits on its remedial powers — a frustration that it cannot pursue more tantalizing goals like punishing employers for unlawful actions or maximizing employment; that it is  limited instead to the more workmanlike task of ensuring employees win backpay awards that approximate the actual losses they’ve suffered.”

 SPECIAL INTEREST AMERICA IS BEHIND GORSUCH: Big Money Special Interest America knows that Judge Gorsuch would be a friend, too – the Koch Brothers and the corporate-funded Judicial Crisis Network are already pouring millions of dollars into getting him confirmed.

An Independent Check on an Out-Of-Control Executive?

Probably Not.

Can Judge Gorsuch be independent of the right-wing causes he has supported or the President who appointed him?  His record suggests not.

Now more than ever, we need an independent check on an out-of-control administration.

Just two weeks in, the Trump administration has:

  • Questioned the integrity of our elections without evidence;
  • Issued legally and constitutionally dubious executive orders like those on immigration and refugees;
  • Fired the Acting Attorney General for maintaining her fidelity to the law rather than pledging obedience to President Trump.

Even John Yoo, the Bush Administration attorney known for his efforts to broadly expand executive authority, has said, “even I have grave concerns about Mr. Trump’s uses of presidential power.”

President Trump has a record of outrageous and unprecedented attacks on judicial independence.

It was disturbing enough during the presidential campaign when then-candidate Trump suggested a federal judge could not be impartial because he was of Mexican heritage.  But just this week, now that he has assumed the highest office in the land, President Trump challenged the legitimacy of the judiciary, impugning the “so-called judge” who struck down the President’s travel ban. As conservative legal scholar Eric Posner has said, President Trump’s attacks on the judiciary make it imperative that Judge Gorsuch condemn the President’s assault on legal independence.

Judge Gorsuch, however, has a long record of fidelity to conservative causes that cast doubt on his ability to be independent.

Judge Gorsuch’s conservative activism dates to his time in college and law school.

  • In college, he founded a newspaper, The Federalist, which published “rabidly conservative” articles during his tenure, according to a history of the paper.   
  • He also wrote columns for the college paper in which he derided “progressives” and the causes they were championing at the time—including divestment from apartheid South Africa.
  • After law school, he clerked for conservative judges such as David Sentelle on the DC Circuit Court and Justices White and Kennedy on the Supreme Court.
  • Throughout his legal career, he has been affiliated with the conservative Federalist Society, including being listed as an “expert” on its website. 

In private practice, he consistently represented corporate interests, leading newspapers to report that his nomination would bring another “friend of business” to the Supreme Court.

  • Reuters reported “As a lawyer in private practice for a decade, President Donald Trump’s U.S. Supreme Court nominee Neil Gorsuch often fought on behalf of business interests, including efforts to curb securities class action lawsuits, experience that could mold his thinking if he is confirmed as a justice.”
  • He represented the U.S. Chamber of Commerce in its efforts to limit class actions. He has shown disdain for class actions, which are often the only mechanism by which individuals who have suffered harms can band together against the corporations that have hurt them.
  • He later wrote that a securities class action is merely a “free ride to fast riches” for plaintiffs’ lawyers.

As a practicing attorney, he attacked “liberals” for use of the courtroom to vindicate fundamental rights. 

Specifically, Gorsuch wrote for the National Review Online that “It would be a very good thing for all involved — the country, an independent judiciary, and the Left itself — if liberals take a page from David von Drehle and their own judges of the New Deal era, kick their addiction to constitutional litigation, and return to their New Deal roots of trying to win elections rather than lawsuits.” When questioned about this view by Senator Leahy during his Circuit Court confirmation process, Gorsuch doubled down on the view that the courtroom is not the place for the vindication of rights. He said: “we as a society can often benefit from resolving our differences through the electoral process rather than through litigation.”

This hard-right dismissal of the importance of access to justice should be anathema to anyone in the legal system, but is particularly inappropriate for someone who seeks a seat on the highest court in the land.

His early record on the lower court bench has played out just as one would expect: his decisions have been consistently conservative, siding with right-wing causes like limiting access to contraception, increasing corporate power, and limiting campaign finance laws.  His fidelity to right-wing dogma raises serious questions about whether he would serve as a viable check on the out-of-control executive who appointed him: President Trump.

The Supreme Court is Different

Senate Republicans Pointing to 2006 Vote on Judge Gorsuch Should Remember Their Own Voting History on SCOTUS Nominees

The White House and Senate Republicans are claiming Judge Gorsuch is a “bipartisan” choice because he received a voice vote in 2006. In fact, nominees to the Supreme Court have always received a higher level of scrutiny than nominees for lower positions. Votes for a nominee for a lower position do not mean support for that nominee to the Supreme Court.

Republicans should remember their own history of supporting individuals for lower positions and then ultimately opposing them for seats on the Supreme Court.

 Senate Republican Leader Mitch McConnell (R-KY), Judiciary Committee Chairman Chuck Grassley (R-IA), Sen. John McCain (R-AZ) and Sen. Richard Shelby (R-AL) supported the nomination of Sonia Sotomayor to be a District Judge for the Southern District of New York – then opposed her nomination to the Supreme Court. [102nd Congress Nomination PN807, 111th Congress, 1st Session, RCV 262]

Former Senate Judiciary Committee Chairman Orrin Hatch (R-UT) and Appropriations Committee Chairman Thad Cochran (R-MS) supported the nomination of Sonia Sotomayor to be a Judge on the 2nd Circuit Court and to be a District Judge for the Southern District of New York – then opposed her nomination to the Supreme Court.  [105th Congress, 2nd Session, RCV 295; 111th Congress, 1st Session, RCV 262; 102nd Congress Nomination PN807]

Sen. Hatch supported the nomination of Elena Kagan to represent the United States at the Supreme Court as Solicitor General – then opposed her nomination to the Supreme Court. [111th Congress, 1st Session, RCV 107; 111th Congress, 2nd Session, RCV 229]

REPUBLICAN LAWMAKERS EXPLAINED WHY THE SUPREME COURT IS DIFFERENT

Senate Judiciary Committee Chairman Chuck Grassley (R-IA): “Because Supreme Court Justices have the last say with respect to the law and have the ability to make precedent, they do not have the same kinds of restraints lower court judges have. So we need to be convinced these nominees have judicial restraint—in other words, the self-restraint to resist interpreting the Constitution to satisfy their personal beliefs and preferences.” [Floor Remarks, 8/6/09]

Former Judiciary Committee Chairman Orrin Hatch (R-UT): “’I will examine Ms. Kagan’s entire record to understand her judicial philosophy. My conclusion will be based on evidence, not blind faith. Her previous confirmation, and my support for her in that position, do not by themselves establish either her qualifications for the Supreme Court or my obligation to support her,’ Hatch said.” [Politico, 5/10/10]

Former Senate Judiciary Committee Chairman Orrin Hatch (R-UT): “Hatch voted for Kagan to be the nation’s first female U.S. solicitor general in 2009 — a position that has a limited number of years of service. ‘That doesn’t mean I’m going to vote for her for the Supreme Court for life — the most important court in the world,’ he said.” [Deseret News, 7/1/10]

Republican Leader Mitch McConnell (R-KY): “Judge Sotomayor’s record on the Second Circuit is troubling enough. But, as I’ve noted, at least on the Circuit Court, there’s a backstop. Her cases can be reviewed by the Supreme Court.”  …  “If, however, Judge Sotomayor were to become a Supreme Court Justice, her rulings would be final.” [Floor Remarks, 7/20/09]

Sen. Richard Shelby (R-AL): “Supreme Court Justices are vested with the power to interpret the Constitution and the laws of the United States. Such responsibility, power and longevity is unparalleled anywhere else in American public life. As such, we must be very cautious in selecting those to whom we grant membership on the Court.” [Ledger-Enquirer, 8/6/09]

Sen. Thad Cochran (R-MS): “Unlike the Federal circuit court, where she has served since 1998, a Justice on the Supreme Court is not necessarily bound by existing legal precedent. If confirmed, there would be no higher court to deter Judge Sotomayor from making decisions that would become the binding law of the land. For these reasons, I intend to oppose her nomination.” [Floor Statement, 7/22/09]