By Lisa Soronen
The authors of "Searching for Scalia" evaluated who on President Donald Trump’s list of potential nominees to replace Justice Antonin Scalia’s seat on the U.S. Supreme Court would be most like Scalia—the originalist, the textualist, and, most important, the conservative. The winner: Supreme Court nominee Judge Neil Gorsuch!
Trump announced Gorsuch was his choice to replace Scalia during a televised event Tuesday night.
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 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 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 Gorsuch and Scalia differ—agency deference—the views of states and local governments are generally more in line with Gorsuch’s view. Less than six month ago 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 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 Scalia, 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 10th U.S. Circuit Court of Appeals 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. Gorsuch’s First Amendment opinions indicate he may be no exception.
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 Gorsuch’s more prominent rulings involve the Fourth Amendment. United States v. Carloss demonstrates that Gorsuch may have Fourth Amendment instincts similar to Scalia. In this case, Carloss posted a “no trespassing” sign. In dissent, Gorsuch opined that the sign unambiguously revoked a police officer’s license to enter the property.
Not much has been written about 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 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 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 Gorsuch’s nomination?
SCOTUSblog provides a more in-depth analysis of Gorsuch’s 10th Circuit opinions.
Lisa Soronen is executive director of the State and Local Legal Center and is a frequent contributor to the NCSL Blog on Supreme Court cases and other judicial matters.