Usually, Neil Gorsuch is the one who sits in judgment, as part of a panel of appellate judges reviewing lower court records for errors. But now the tables have turned, and the judge has submitted his own record for review.
Named by President Donald Trump to fill the late Justice Antonin Scalia’s seat on the Supreme Court on Jan. 31, Gorsuch faces Senate confirmation hearings in March. On Feb. 11, he responded to a Senate Judiciary Committee questionnaire with 68 pages (pdf), listing jobs, articles, club memberships, speaking engagements, and even calendar entries for events he can’t recall attending.
Gorsuch has decided 3,000 cases—1,800 criminal and 1,200 civil—as part of a panel of at least three, sometimes more, judges on the 10th Circuit Court of Appeals in Denver, Colorado. He listed these 10 as most significant:
Guttierrez-Brizuela v. Lynch
Hugo Rosario Guttierrez-Brizuela applied to adjust his immigration status, relying on a rule that grants the attorney general discretion to review applications from non-citizens who illegally reentered the US and are otherwise barred for 10 years. The provision was upheld in a 10th Circuit case in 2005. The Board of Immigration Appeals (BIA) denied Guttierrez-Brizuela’s application, citing a 2007 agency rule that relies on a conflicting provision. He challenged the denial in a suit against then-US attorney general Loretta Lynch.
Three judges on the panel at the 10th Circuit had to decide which rule applied. They unanimously held, in a decision written by Gorsuch, that Guttierrez-Brizuela could rely on the court’s 2005 ruling, which was the law at the time he applied. Basically, the court told the BIA and AG that agencies can’t overturn judicial rulings. Gorsuch also wrote a concurrence, explaining that deferring to agency interpretations of their own rules raises constitutional separation of powers concerns, as the judiciary has the power of review over executive and legislative branches and—by extension—administrative agencies.
United States v. Carloss
Bureau of Alcohol, Tobacco, and Firearms agents visited Ralph Carloss, an ex-felon living in a remote area of Oklahoma, to follow up on tips that he had guns. They entered an unfenced yard posted with no trespassing signs, climbed his porch, and knocked on the door at length. Carloss eventually let the agents in, which led to a criminal conviction.
He challenged the agents’ entry on appeal to the 10th Circuit, arguing that they needed a warrant and had violated the Constitution’s Fourth Amendment guarantee to freedom from unreasonable government searches and seizures. The government said there is implied consent to enter the area around the house—called curtilage—and knock on the door, according to ”customs of the land.”
Two of three judges on the appellate court agreed with the government, holding that there was no constitutional violation. Gorsuch disagreed and dissented, writing that curtilage is protected under Supreme Court precedent and that consent to entry on a remote property can’t be implied where no trespassing signs are posted. But he noted that the agents could have entered in an emergency or with a warrant.
Caplinger v. Medtronic
Patricia Caplinger sued Medtronic, a Minnesota medical device maker, based on a state products liability law about warning labels. Medtronic moved to dismiss, successfully, arguing that a federal statute prohibits states from making their own distinct requirements for medical devices. Caplinger challenged the dismissal.
The 10th Circuit’s majority opinion, written by Gorsuch, held that a plaintiff can rely on state law for a medical device claim if it’s narrower than federal law (which would make it fall within US law and thus not distinct). But that wasn’t the case here, so the appeals court affirmed the district court’s dismissal.
US v. Rentz
Philbert Rentz fired a single shot that struck two victims during a drug crime in Utah. He was charged with two uses of a firearm, enhancing his sentence. Rentz argued that it was one use of a gun during one offense and that the government overcharged him by reading the federal sentencing statute incorrectly.
Eleven out of 12 judges on the 10th Circuit panel agreed. Gorsuch wrote the decision, explaining that a ”bramble of prepositional phrases” made the sentencing law difficult to interpret, but that Rentz’s single shot was one use and could only be charged once. To the extent there was doubt about the interpretation, he noted, the court relied on the rule of lenity, a criminal law principle which mandates resolving ambiguities in sentencing statutes by favoring defendants.
MHC Mutual Conversion Fund v. Sandler O’Neill & Partners
Sandler O’Neill, an investment firm, expressed opinions in newsletters that turned out to be false. MHC Mutual Conversion sued for securities fraud, but the case was dismissed.
On appeal, the 10th Circuit had to decide if expressing a false opinion about future events can be considered fraud under securities law. It held that an opinion could be subject to fraud claims if expressed without belief and objectively false. But MHC Mutual didn’t argue that Sandler O’Neill expressed opinions its analysts didn’t believe, so the three judges—in a unanimous decision written by Gorsuch—affirmed the district court’s dismissal of this case.
Yellowbear v. Lampert
Andrew Yellowbear, a Wyoming state prisoner serving life for his daughter’s murder, sued his prison for refusing him use of the sweat lodge, preventing him from practicing his Native American faith. He argued this violated a federal statute protecting freedom of religion for people who are institutionalized. The prison said transporting Yellowbear from restrictive custody was too expensive, and it successfully moved to dismiss his claim.
Yellowbear appealed to the 10th Circuit and the three-judge panel unanimously reversed the lower court’s ruling. Gorsuch wrote the decision, finding that Yellowbear did show that using the sweat lodge was part of his religion, and the prison failed to meet the burden of showing a compelling government interest to disallow the religious practice, carried out in the least restrictive way, as required by law.
Hobby Lobby v. Sebelius
The Greens—a family that owned the crafts chain Hobby Lobby and Christian bookstore chain Mardel—sued the the Department of Health and Human Services (then headed by Kathleen Sebelius) on behalf of their companies. They claimed religious freedom laws shielded the companies from Affordable Care Act (Obamacare) requirements that violate the family’s religious conviction that life begins with conception.
They specifically objected to paying for four types of abortifacients (contraceptives that abort implanted eggs) but not to paying for contraceptives that block fertilization. Refusing to comply with insurance requirements subjected them to steep fines, so they sought a preliminary injunction to halt the fines pending litigation. The district court denied the request and the Greens appealed.
The 10th Circuit panel of eight judges first had to consider whether a corporation could make a claim based on a statute that protects people but doesn’t define the word “person.” Based on rules of statutory interpretation and Supreme Court precedent, the court held that a corporation was a person, so could sue. It also found that the Greens seemed likely to succeed on the merits of the religious freedom claim. Gorsuch joined the majority opinion, but he did not write it. In a concurrence, he noted that the family’s views were reprehensible to many and that religious freedom laws are especially designed to protect unpopular positions.
Lee v. Max International
A district court dismissed Markyl Lee’s breach of contract lawsuit because he continually ignored the defendant’s and judge’s document production requests and orders. Lee appealed, arguing this was too harsh a penalty for failing to follow discovery rules.
The three-judge appeals panel disagreed. Gorsuch wrote their unanimous decision, warning litigants they get three tries on any one production demand and will face consequences if they still fail to comply.
Kay Electric Coop v. City of Newkirk
Kay Electric and the municipality of Newkirk, Oklahoma both sought contracts to provide a new local jail with electricity. Kay offered better terms, but Newkirk secured the contract by refusing to provide the jail city sewage services unless it signed up for the municipality’s electricity. Kay sued the city for violating anti-competition laws. But municipal governments are immune from liability for certain claims, and the case was dismissed and appealed.
Gorsuch wrote the decision for the unanimous three-judge panel, finding that a municipality can claim immunity from anti-competition claims if that’s what state laws intend. Oklahoma statutes were written to encourage competition in the electricity services market, however, so Newkirk was liable under federal antitrust law.
US v. Dolan
Brian Dolan was convicted of assaulting a hitchhiker, resulting in $100,000 worth of medical expenses for the victim. During sentencing proceedings the judge spoke of ordering restitution—making Dolan pay for the victim’s expenses as a condition of his sentence—but he didn’t specify an amount of money until after a 90-day sentencing deadline had passed.
Dolan appealed the restitution order in the 10th Circuit, arguing that the judge missed the deadline. All three judges on the panel disagreed. Gorsuch wrote their opinion, finding that since the judge made several statements about plans to order restitution before the deadline had passed, the restitution order was valid. The Supreme Court affirmed this ruling in 2010.