In The New York Times, Sheryl Gay Stolberg reports that although Judge Neil Gorsuch’s “record on gay rights is thin,” and it “suggests a deference to religious freedom and a strong skepticism toward using the courts to find a new constitutional basis for L.G.B.T. rights,” “interviews with his friends – both gay and straight – and legal experts across the spectrum suggest that on gay issues, at least, he is not so easy to pigeonhole.” Constitution Daily features a podcast discussing the Gorsuch nomination. At his eponymous blog, Ernie Haffner discusses Gorsuch’s “attacks” on the traditional framework used to evaluate employment discrimination cases, arguing that “even if Gorsuch believes that the McDonnell Douglas framework does not adequately track the ultimate issue of discrimination, that problem can be addressed without doing away with the framework altogether.”
On Friday, the justices met for their February 17 conference; our list of “petitions to watch” for this conference is available here. The calendar for the February sitting, which will begin on Tuesday, February 21, is available on the court’s website.
The petition of the day is:
Issues: (1) Whether Congress abrogated the sovereign immunity of an Indian tribe under the Fair and Accurate Credit Transactions Act amendment to the Fair Credit Reporting Act, codified as 15 U.S.C. § 1681, et seq., by providing that “any … government” may be liable for damages; and (2) whether an individual who receives a computer-generated cash register receipt displaying more than the last five digits of the individual’s credit card number and the card’s expiration date has suffered a concrete injury sufficient to confer standing under Article III of the United States Constitution.
In the Los Angeles Times, Jaweed Kaleem and Maura Dolan report that several “legal experts who weighed in on the U.S. 9th Circuit Court of Appeals decision to not order a reinstatement of President Trump’s travel ban said they thought the administration had slim chances if it appealed to the U.S. Supreme Court.” Amy Howe covers the court of appeals decision, including the possibility that the government might seek a stay of the ruling in the Supreme Court, for this blog.
Coverage of and commentary on the nomination of Judge Neil Gorsuch to the Supreme Court continues. In The Economist, Steven Mazie breaks down the reasons why “this highly respected judge” faces “a bruising confirmation fight.” For the Associated Press, Jessica Gresko looks back at the eight men who have occupied Scalia’s seat, including Justice Robert Jackson, whom Gorsuch mentioned when he accepted the nomination and whom Scalia cited as “one of his heroes.”
The petition of the day is:
Issue: Whether Congress may require organizations engaged in the genuine discussion of policy issues, unconnected to any campaign for office, to report to the Federal Election Commission, and publicly disclose their donors, pursuant to the Bipartisan Campaign Reform Act of 2002.
A three-judge panel of the U.S. Court of Appeals for the 9th Circuit dealt a decisive – if only temporary – blow to the Trump administration’s executive order restricting immigration from seven countries with predominantly Muslim populations. In a 29-page opinion, the court of appeals left a federal district court’s order blocking the executive order in place for now, rejecting virtually all of the Trump administration’s pleas to allow the federal government to enforce the order while its constitutionality is litigated in the lower courts. Although there has been no official announcement yet, the next stop for the dispute is likely to be the Supreme Court, where the federal government could ask the justices to step in.
The 9th Circuit’s opinion was released shortly after 6:00 p.m. EST, the culmination of a whirlwind of litigation over the past two weeks. On January 27, 2017, President Donald Trump signed an executive order that would bar, for 90 days, citizens of seven Muslim-majority countries – Iraq, Syria, Sudan, Iran, Somalia, Libya, and Yemen – from entering the United States. Explaining that it was intended to “protect the American people from terrorist attacks from foreign nationals admitted to the United States,” the order also suspended for 120 days the U.S.’s program for admitting refugees into the United States.
Hatch is the senior member of the Senate Judiciary Committee.
Last week, President Donald Trump nominated Judge Neil Gorsuch to replace Justice Antonin Scalia on the U.S. Supreme Court. Judge Gorsuch is an ideal choice to fill this seat: He has impeccable credentials and a decade-long record on the bench demonstrating a keen understanding of the proper role of a judge. Given the increasingly contentious nature of the confirmation process, it is no surprise that many Democrats are stretching to find anything objectionable about Judge Gorsuch, no matter how ridiculous. In the current political environment, they have focused much of their criticism on one particularly strained argument: their claim that Justice Gorsuch would not serve as an independent check on the executive branch.
Fortunately, we do not have to speculate about how Justice Gorsuch would decide these kinds of cases. Judge Gorsuch has consistently demonstrated in his judicial opinions and other writings that he deeply values the constitutional separation of powers between the three branches of the federal government. Judge Gorsuch understands that the Constitution gives each branch distinct roles: Congress makes the laws, the President enforces those laws, and the courts interpret those laws and the Constitution. The branches may act only according to the powers the Constitution grants them, with the remaining powers and rights reserved to the states and, ultimately, to the people.
With respect to the power of the executive branch, Judge Gorsuch has a strong record of reining in unlawful overreach. For instance, in Gutierrez-Brizuela v. Lynch, the Attorney General had attempted to apply a new agency rule retroactively to prohibit a noncitizen from receiving relief under federal immigration law. Writing for the U.S. Court of Appeals for the 10th Circuit, Judge Gorsuch concluded that such action exceeded the executive’s power to enforce the law. In a separate opinion, he went one step further and expressed concerns about how judge-made doctrines that require judicial deference to federal agency actions—namely, Chevron deference and its progeny—“permit executive bureaucracies to swallow huge amounts of core judicial and legislative power and concentrate federal power in a way that seems more than a little difficult to square with the Constitution of the framers’ design.” Judge Gorsuch then proceeded to provide a textbook explanation of the proper separation of powers between the three branches, concluding that “[i]t was to avoid dangers like these, dangers the founders had studied and seen realized in their own time, that they pursued the separation of powers. A government of diffused powers, they knew, is a government less capable of invading the liberties of the people.”
In The National Law Journal (subscription or registration required), Tony Mauro suggests that “U.S. Supreme Court nominee Neil Gorsuch may have helped cement his chances for confirmation Wednesday night by telling senators that President Donald Trump’s critical tweets of federal judges were ‘disheartening’ and ‘demoralizing,’” because “Gorsuch’s comments could have the effect of telegraphing to the legal establishment and to the Supreme Court itself that he embraces the importance of judicial independence.” Coverage of Gorsuch’s remarks comes from Julie Hirschfeld Davis in The New York Times and from Abby Phillip and others in The Washington Post. At the Election Law Blog, Rick Hasen calls Gorsuch’s comments “a smart political move” that was likely “strategized and vetted with the team seeking to secure his nomination,” and predicts that at “the hearings, I expect regardless of how many ways and how many times Democrats ask, Judge Gorsuch will not go much beyond ‘disheartening’ and ‘demoralizing.’”
The petition of the day is:
Issue: Whether plaintiffs may pursue claims against the former head of state and defense minister of a foreign country under the Torture Victim Protection Act for alleged misconduct in that country when they have already recovered adequate remedies in the foreign country for their alleged losses.
Reports indicate that President Donald Trump intends to nominate Charles Cooper, a well-liked and well-respected Washington lawyer who served in the Reagan administration, to serve as the U.S. solicitor general. Cooper is perhaps best known for his defense of California’s Proposition 8, which barred same-sex marriage in that state. By a vote of 5-4, the justices ruled that the proponents of the law did not have a legal right to defend the ban in court after state officials had declined to do so.