President Trump said that he will make his choice next Thursday. Judges William Pryor and Thomas Hardiman are supposed to be on a very short list of contenders. But one of the strongest contenders is Judge Neil Gorsuch who is a conservative and a favorite with the Federalist Society and the Heritage Foundation. His views on religious liberty are the key, as expected in this new administration. He has sided with corporations over theontraceptive mandate being in violation of religious beliefs. Does everyone recall the Hobby Lobby case?
But another important area where his ideas are consequential is regarding the power held by administrative agencies. He has challenged the idea that courts should defer to administrative agencies in their interpretation of the law. This is in line with Justice Clarence Thomas’s views. This also makes sense when we consider the direction the new administration is heading with its choice of nominees to head the various agencies and the recent orders to control what agencies are releasing to the public on their webpages. Stephen I. Vladeck, CNN Supreme Court contributor and professor of law at the University of Texas School of Law states: “Judge Gorsuch has been a stern critic of a fixture of the Supreme Court’s administrative law jurisprudence — the idea that, where a federal agency is enforcing an ambiguous statute, courts should defer to how the agency understands the statute even if the courts read it differently.” “If he were to form part of a majority to scale back that principle, it would be a major sea change in the relationship between the executive branch and the courts, and one that would likely impose significant new constraints on the scope of federal regulatory authority on all topics — from immigration and criminal law enforcement to environmental protection, consumer product safety, and drug regulation,” Dan Goldberg of the Alliance for Justice also states: “His position on this is more extreme than Justice Scalia,” “It would be hard to overstate the damage it would cause this nation and the American people.”
Judge Gorsuch is also considered to have strong opinions on women’s rights to access reproductive health care and the rights of workers and consumers. Adam Feldman whose keeps a blog called Empirical Scotus says that Gorsuch’s ideas resonate with President Trump in the areas of abortion, gun rights, the ACA, and judicial philosophy, including his use of originalist principles.
We have already seen Trump’s lawyers using originalism as a defense in the recent white paper on the president’s conflicts of interests under the Foreign Emoluments Clause. Gorsuch’s philosophy is in line with that of the late Justice Scalia. In his own words, judges should “apply the law as it is, focusing backward, not forward, and looking to text, structure, and history to decide what a reasonable reader at the time of the events in question would have understood the law to be — not to decide cases based on their own moral convictions or the policy consequences they believe might serve society best.”