What Would a Neil Gorsuch Confirmation Mean for Plaintiff-side Lawyers?
Hailing from the Tenth Circuit Court of Appeals in Colorado, Judge Neil McGill Gorsuch is best known for his comments on ‘culture war’ issues like religious liberty and euthanasia. But President Trump’s pick for the Supreme Court has also taken stances on the set of issues that most concern plaintiff-side attorneys. Gorsuch has been called Scalia 2.0, but he’s not some carbon copy perfectly filling a Scalia-sized hole in the bench.
I’ve looked into Gorsuch’s records, and here are my tentative predictions on how his presence on the Supreme Court could affect those in the business of seeking out justice for plaintiffs:
First a broad view of things: Fortune is predicting that Gorsuch would take the side of corporations in cases that come before the court. This penchant could be bad news for attorneys who seek to protect the rights of ordinary people up against the abuse of big business.
With his own history as a corporate lawyer, maybe we shouldn’t be surprised that he repeatedly has opined on the importance of protecting corporate rights. The most famous instance of this is in the ‘Hobby Lobby’ case (Hobby Lobby Stores, Inc. v. Sebelius), where Gorsuch protected the religious liberty of corporations to avoid offering health insurance to their employees that cover birth control. There are a number of other cases, described below, where Gorsuch seems primarily concerned with protecting corporations – perhaps at the expense of ordinary consumers, workers, and residents.
Perhaps the worst news for plaintiff-side lawyers is about class action lawsuits. Gorsuch isn’t a fan. Instead of viewing them as an important tool to seek justice for ordinary consumers with small claims, he seems to view them as scams by greedy lawyers.
When he was still in private practice, Gorsuch wrote a brief lambasting class action lawsuits (Dura Pharmaceuticals, Inc. v. Broudo), and further wrote in a 2005 article for Legal Times that lawyers use class actions as a “free ride to fast riches” and that such litigation “imposes an enormous toll on the economy, affecting virtually every public corporation in America at one time or another and costing businesses billions of dollars in settlements every year.”
The right to use class actions as a tool for seeking justice for groups of people is likely to find a foe in a justice like Gorsuch.
In Howard v. Ferrellgas Partners, Judge Gorsuch seemed to set a moderate course regarding the FAA:
Everyone knows the Federal Arbitration Act favors arbitration. But before the Act’s heavy hand in favor of arbitration swings into play, the parties themselves must agree to have their disputes arbitrated. While Congress has chosen to preempt state laws that aim to channel disputes into litigation rather than arbitration, even under the FAA it remains a “fundamental principle” that “arbitration is a matter of contract,” not something to be foisted on the parties at all costs.
However, most legal pundits think Gorsuch’s concept of what it looks like when parties ‘agree to have their disputes arbitrated’ may be fairly broadly construed. It’s likely that he could uphold the ‘contract gotchas’ mandating arbitration, even though they’ve been shown to tip the scales of justice in favor of corporations. This could quickly erode attempts the Obama administration made to curtail contract ‘gotchas.’
And this very issue could soon come to the attention of the Supreme Court. The Court will likely have to weigh in on the constitutionality of the Consumer Finance Protection Bureau, which has, among other things, pushed back against mandatory arbitration agreements in contracts for financial products like credit cards and bank accounts. Last October a D.C. circuit court found the CFPB’s structure to be unconstitutional due to a lack of oversight: with the CFPB appealing the decision, this could come soon to the Supreme Court. (Alternatively, it’s also likely the Trump administration would simply remove this appeal, fire the director, and steer the CFPB in more business-friendly waters on its own).
Were he confirmed quickly, Gorsuch could also rule on three cases taken by the court this term regarding whether employees can be required, as a condition of their employment, to sign mandatory arbitration agreements and waive their right to class action lawsuits. Most expect Gorsuch to be as ardently supportive of the FAA as Scalia was before him.
A labor-law blog notes that Gorsuch isn’t an ideologue on labor, occasionally siding with and against employers. Others, such as Senate Minority Leader Chuck Schumer, are more concerned (“Judge Gorsuch has repeatedly sided with corporations over working people,” said a worried Schumer, who has hinted that the Senate will try to filibuster the confirmation process).
Several opinions written by Gorsuch on the question of workers’ rights have the labor community worried. One example is Strickland v. United Parcel Service, Inc., where Gorsuch wrote the opinion finding workplace gender discrimination claims invalid in workplaces where men face harassment similar to what women face on the job.
Gorsuch would be going in the Court at a tenuous time for organized labor. The New York Times predicts that labor unions could be the first to feel the effect of a Scalia 2.0 on the SCOTUS bench. Before Scalia’s sudden death, everyone thought the Supreme Court would rule that certain union dues violated the First Amendment. But with a 4-4 deadlock, the ruling kept those dues in place. Gorsuch would be likely to reverse that course when new challenges to organized labor surfaced.
Some legal theorists see Gorsuch as on the forefront of judicial attempts to change the way regulation and consumer protection works. As SCOTUSblog explains, Gorsuch has a right-of-Scalia take on a doctrine called the ‘Chevron deference.’ This doctrine essentially states that when the law is unclear, the judiciary should defer to federal agencies in determining how it should be enforced. If Gorsuch has his way in this area of administrative law, the judiciary will take a stronger role in interpreting law, rather than deferring to agencies—significantly weakening the power of federal agencies to enact regulations and protections.
CNN Supreme Court contributor and law professor Stephen I. Vladeck notes:
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.
However, Jeff John Roberts with Fortune magazine thinks that Gorsuch’s views on regulation may be fairly irrelevant, as the Trump administration is already vowing to dramatically reduce regulations on the executive/legislative end.
Either way, if regulations and protections are removed, then it’s likely we’ll see more injuries and harm done to consumers and workers. This means plaintiff-side lawyers can play an important role in finding ways for the ‘little guy’ to get justice through tort claims, even in inhospitable times.
Any Silver Lining?
Several blawgers have pointed out that Gorsuch isn’t nearly as ideological as others who could have been chosen by the Trump administration, and is highly qualified for the position. Though the news in general is bound to be grim for plaintiff-side attorneys, as a fan of good legal writing I’ll offer up this sliver of good news: at least everyone likes Gorsuch’s writing style. It’s clear, it’s well-researched, and it’s sometimes even entertaining. So when Gorsuch is doing the writing, you at least won’t have to wade through pages of ambiguous drivel to figure out that the ruling is bad news for you and your clients.