SCOTUS Nominee Gorsuch's Judicial Conservatism May Benefit Employers

by Ballard Spahr LLP

Ballard Spahr LLP

President Trump's nomination of Judge Neil M. Gorsuch could shape the U.S. Supreme Court for years to come because of the judge's relatively young age (49) and because he could be part of a conservative majority on the Court, depending on the views of Justice Anthony M. Kennedy, his former boss, who has been a swing vote on close cases.

Throughout President Trump’s campaign, he stated his desire to appoint someone "very much in the mold" of Justice Antonin Scalia, who passed away last February. Judge Gorsuch appears to be a natural successor. While on the U.S. Court of Appeals for the 10th Circuit, he has demonstrated conservative legal reasoning and a textual philosophy for interpreting statutes that mimic Justice Scalia. We offer some background information on Judge Gorsuch, his stance on labor and employment issues in his 10th Circuit opinions, and issues he could influence if confirmed to the Court.


Judge Gorsuch, a native of Denver, Colorado, received his law degree from Harvard in 1991 and a doctorate in Legal Philosophy in 2004 from Oxford as a Marshall Scholar. He began his legal career as a law clerk for Judge David B. Sentelle in the D.C. Circuit and then clerked for Supreme Court Justice Byron R. White and Justice Kennedy. Following his clerkships, he worked in private practice for nearly 10 years, specializing in complex litigation. In 2005, he entered the public sector as Principal Deputy Associate Director at the Department of Justice. The following year, he was appointed to the 10th Circuit by President George W. Bush and his nomination was confirmed unanimously. He is the youngest Supreme Court nominee in the last quarter century.

Views on Labor Law

Judge Gorsuch has issued three majority opinions involving the National Labor Relations Board (NLRB). In each opinion, he upheld the decision of the Board, with two opinions favoring employers. His most notable decision was Teamsters Local Union No. 455 v. N.L.R.B. In that case, the Board denied a union’s argument seeking to hold an employer’s lockout of employees unlawful because it had threatened to hire permanent replacement workers. The Board ruled that threatening to hire replacement workers violated the National Labor Relations Act (NLRA), but did not find that the lockout itself was unlawful. Judge Gorsuch affirmed the decision, holding that "a previously lawful lockout" does not become unlawful simply because an employer "threatens to hire not temporary workers but permanent ones." However, in two dissenting opinions, he argued that the NLRB decisions had failed to adhere to the text of the statute and represented an unwarranted expansion of NLRA rights.

Views on Employment Discrimination

Judge Gorsuch has issued the majority opinion in 14 employment discrimination cases. None of those opinions garnered a dissent, and nine held for the employers. He has also issued one dissent and one concurrence that were advantageous to employers. On the whole, Judge Gorsuch's opinions do not contain new interpretations of existing law that would be viewed as antithetical to the interests of employers.

In TransAm Trucking, Inc. v. Admin. Review Bd., Judge Gorsuch expressed a pro-business view by defending an employer's decision to discharge an employee who violated company protocol. More significantly, in Paup v. Gear Products, Judge Gorsuch criticized the McDonnell Douglas framework for assessing circumstantial evidence of discrimination. In his view, that diverts attention away from the fundamental question in discrimination cases—whether discrimination took place—and substitutes in its stead a "proxy that only imperfectly tracks that inquiry." In subsequent cases, he continued to question the role of this analytical framework, suggesting that it is burdensome to apply and asking, recently in Walton v. Powell, whether the "McDonnell Douglas game is worth the candle even in the Title VII context."

Views on Administrative Agencies

Throughout his time on the 10th Circuit, Judge Gorsuch has voiced his displeasure with the power entrusted to administrative agencies. In Gutierrez-Brizuela v. Lynch, he wrote a concurring opinion that argued that deference afforded to administrative agencies—known as "Chevron deference"—is unnecessary and potentially unconstitutional because it strips the judicial branch of its power to interpret statutes’ meaning. Judge Gorsuch has advocated for courts to independently review all laws and regulations, effectively urging a de novo standard, without giving weight to agency interpretation.

Impact on the Supreme Court

If confirmed, Judge Gorsuch could participate in several labor and employment cases pending before the Supreme Court and in other important issues working their way through the lower courts. If he follows the conservative mold of Justice Scalia, he could work to limit the reach of disparate impact analysis, eradicate affirmative action policies, reduce or eliminate Chevron deference, and provide a business-friendly approach to labor issues.

A more immediate issue—which is currently before the Supreme Court and will likely be decided this term—is the validity of class action waivers in employment agreements. Judge Gorsuch could be the deciding vote in the Court's decision. While it is too early to predict how he would come out on this issue, it is instructive that he has decidedly been pro-employer in his labor and employment decisions on the 10th Circuit.

Other issues currently in litigation that may end up in front of the Court in the current or future terms include:

  • the Department of Labor's (DOL) persuader rule, currently enjoined but in litigation;

  • the NLRB's expedited election rules, already in effect but also in litigation;

  • the NLRB's joint employer ruling in Browning Ferris, currently on appeal to the D.C. Circuit; and

  • the DOL's overtime rules, which are enjoined but on a fast track appeal in the Fifth Circuit.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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