SCOTUS Nominee ‘Excellent’ Choice for Employers

President Donald Trump’s nomination of Judge Neil Gorsuch to the U.S. Supreme Court’s vacant seat may be good news for employers, according to employment law attorneys.

Gorsuch is known for adhering to the letter of the law, which means he won’t be creating any new rights through judicial activism, according to John Husband, a senior partner at Holland & Hart in the judge’s hometown of Denver.

Trump announced his pick January 31, calling Gorsuch “a man who our country really needs—and needs badly—to ensure the rule of law and the rule of justice.”

In response, Gorsuch promised to interpret the Constitution and laws strictly. “[I]n our legal order, it is for Congress and not the courts to write new laws,” he said. “It is the role of judges to apply, not alter, the work of the people’s representatives. A judge who likes every outcome he reaches is very likely a bad judge, stretching for results he prefers rather than those the law demands.”

This philosophy is good news for employers, said Husband, an editor of the Colorado Employment Law Letter. “He’s an excellent choice for employers. He follows the law to a T. He doesn’t try to create law through judicial interpretation,” Husband told BLR^®. “He’s going to be a very, very pro-employer justice.”

Gorsuch, who currently sits on the 10th U.S. Circuit Court of Appeals, is known for his role in the Hobby Lobby decision. In that case, he joined the 10th Circuit’s opinion that employers can claim a religious exemption from the Affordable Care Act’s mandate to cover birth control in health plans. The Supreme Court later agreed.

Gorsuch’s other employment-related opinions, however, had varying outcomes, according to H. Juanita Beecher, of counsel with FortneyScott and an editor of Federal Employment Law Insider. “He doesn’t always side with employers and he doesn’t always side with employees,” she said. His confirmation would simply bring the Court back to where it was with Justice Antonin Scalia, she said.

Expectations

If Gorsuch is confirmed, federal regulations could face additional scrutiny by the Supreme Court, according to Beecher. It’s no secret that Gorsuch isn’t a fan of “Chevron deference,” a legal standard under which courts defer to a federal enforcement agency’s regulatory interpretation of a law. Regulations issued by the Obama administration could be particularly at risk, she said.

A recent case challenging class action waivers may be one of Gorsuch’s first opportunities to weigh in on employment law. The high court earlier this month agreed to hear a trio of wage and hour cases involving arbitration agreements that require workers to waive their right to pursue employment claims as a group. (See Supreme Court Will Consider Class Action Waivers.)

It depends on how his confirmation process goes, but Gorsuch could be on the Court in time for the question to be in front of him, Beecher said. The case questions whether the National Labor Relations Board went too far in interpreting federal law as prohibiting such waivers. With Gorsuch tipping the court 5-4 to the right, Beecher said she suspects it would rule that the law doesn’t go that far. “If you take his view on Chevron deference, he’s not going to defer to the Board’s view,” she said. “He’s going to look at the law and make his own decision.”

Husband agreed. The Supreme Court has previously supported arbitration and “I believe a strict constructionist will also favor arbitration,” he said. “I think it will tip in favor of the employer on that issue.”

Gorsuch also may have the opportunity to consider whether Title VII of the Civil Rights Act prohibits discrimination based on sexual orientation. The question is pending in several courts of appeal and could soon be ripe for the Supreme Court’s review, Beecher and Husband said.

And if Gorsuch is on the Court, “he’s not going to create rights,” Husband said. “He believes in Congress and if they want to pass a law, they can pass a law, and he’ll uphold it.”

Beecher agreed that Gorsuch is unlikely to read such coverage into the statute. Congress has been considering legislation that would add such protection to Title VII for more than 20 years. “So there’s a pretty strong argument that at least the Congress doesn’t think it’s covered,” she said.

Confirmation

Both Husband and Beecher said that the nominee is well-qualified, but that doesn’t mean his confirmation is a sure thing.

Sen. Elizabeth Warren (D-MA), along with several other Democrats, have promised to oppose his confirmation. “As a judge, he has twisted himself into a pretzel to make sure the rules favor giant companies over workers and individual Americans. He has sided with employers who deny wages, improperly fire workers, or retaliate against whistleblowers for misconduct,” she posted on Facebook after the announcement. “He has ruled against workers in all manner of discrimination cases.”

Under different circumstances, Gorsuch may not have faced such strong opposition, Beecher said. But based on Trump’s recent executive orders, Democrats may fight this latest move “tooth and nail” because it’s one thing over which they have some control.

Republicans have warned, however, that they might employ the so-called nuclear option if Democrats try to block Gorsuch’s confirmation. That option allows them to move forward with only a simple majority but isn’t currently permitted for Supreme Court nominees. Republicans, however, have threatened to change the rule.

It will be interesting to see how this plays out, Beecher said; “we’ll just have to wait and see.”