What Might Justice Gorsuch Mean for States and Local Governments?

The authors of Searching for Scalia evaluated who on President Trump’s list of potential nominees to replace Justice Scalia’s seat on the Supreme Court would be most like Justice Scalia—the originalist, the textualist, and, most importantly, the conservative. The winner:  Supreme Court nominee Judge Neil Gorsuch!

While just one case is too few to judge any Supreme Court nominee, one case in particular gives states and local governments a reason to be excited about this nomination. Last year Judge Gorsuch (strongly) implied that given the opportunity the U.S. Supreme Court should overrule Quill Corp. v. North Dakota (1992). In Quill, the Supreme Court held that states cannot require retailers with no in-state physical presence to collect sales tax.

While Judge Gorsuch hasn’t ruled on abortion (an issue states care about) his most prominent rulings involve a related issue (the Affordable Care Act birth control mandate), which is not of particular interest to states and local governments.

Interestingly, in the one area of the law where the views of Judge Gorsuch and Justice Scalia differ—agency deference—the views of states and local governments are generally more in-line with Judge Gorsuch’s view.

Less than six months ago Judge Gorsuch called for the end of Chevron deference. In Chevron v. NRDC (1984) the Supreme Court held that courts should defer to reasonable agency interpretations of ambiguous statutes. States and local governments generally prefer that courts not defer to federal agency regulations because this deference gives federal agencies a lot of power.

If Judge Gorsuch is confirmed, his views on agency deference could be very important if the Court rules on the legality of the Clean Power Plan, the waters of the United States definitional regulations, and the Fair Labor Standards Act overtime rules.

Like Justice Scalia, Judge Gorsuch has written a number of opinions indicating he is supportive of religion in public spaces. His opinions don’t indicate that he objects to the death penalty. While he hasn’t decided any cases involving gun control he encouraged the Tenth Circuit to review a case where it held that to convict a felon for knowingly possessing a gun, the person convicted doesn’t have to know he or she is a felon.

Liberals—and conservatives especially—routinely rule against states and local governments in First Amendment cases. Judge Gorsuch’s First Amendment opinions indicate he may be no exception.

Justice Scalia was known to take a more pro-privacy, pro-criminal defendant view of the Fourth Amendment than his conservative colleagues on the Supreme Court. Many of Judge Gorsuch’s more prominent rulings involve the Fourth Amendment. United States v. Carloss demonstrates that Judge Gorsuch may have Fourth Amendment instincts similar to Justice Scalia. In this case Carloss posted a “no trespassing” sign. In dissent, Judge Gorsuch opined that the sign unambiguously revoked a police officer’s license to enter the property.

Not much has been written about Judge Gorsuch’s views on some of the more routine cases brought against states and local governments including employment, qualified immunity,and land use. It would be surprising if Judge Gorsuch veered to the left on any of these issues.

Now that we know who the nominee is, two questions remain. Will the Senate Democrats filibuster Judge Gorsuch, as they have promised to do? If they do, will Senate Republicans exercise the “nuclear option,” meaning only a simple majority of senators will be needed to confirm Judge Gorsuch’s nomination?

SCOTUSblog provides a more in-depth analysis of Judge Gorsuch’s Tenth Circuit opinions.