Neil Gorsuch

Neil Gorsuch is a Trump-appointed Associate Justice on the U.S. Supreme Court. A member of the Federalist Society, Gorsuch was on the second list of potential nominees that Leonard Leo, a leader of the right-wing Federalist Society, handpicked for Trump. During Gorsuch’s nomination, when asked how he came to Trump’s attention, Gorsuch wrote that he was “contacted by Leonard Leo.” Gorsuch’s nomination to the Supreme Court was endorsed and heavily backed by the National Rifle Association with a $1 million ad campaign; the NRA’s Institute for Legislative Affairs received $950,000 from Leo’s America Engaged in 2017. Charles Koch’s Freedom Partners Chamber of Commerce (now called Stand Together Chamber of Commerce) also ran campaigns backing Gorsuch, and received $700,000 from America Engaged that year.

Gorsuch was nominated to the bench in January 2017 and swiftly confirmed, 54-45, by the Republican-controlled Senate, after Sen. Mitch McConnell (R-KY), in a highly controversial move without precedent, refused to hold a vote for 293 days on President Obama’s nominee Merrick Garland for the vacancy caused by Antonin Scalia’s death in February 2016. McConnell’s obstruction and Gorsuch’s confirmation were buttressed by a well-funded and coordinated campaign by outside groups tied to Leo. Gorsuch is one of six Republican-appointed, Federalist Society-tied justices who comprise a right-wing faction controlling the Court, all of whom were installed with the help of Leo.

Amid the firestorm of ethics scandals that has engulfed the Supreme Court over the past year– chief among them lavish gifts and travel provided to Clarence Thomas from billionaire Harlan Crow–were revelations of a secretive land sale Gorsuch profited from right after his confirmation. In April 2018, just over a week after taking the bench, a Colorado home that Gorsuch had a 20 percent stake in was sold for nearly $2 million to Brian Duffy, the head of a major law firm, Greenberg Traurig, that has brought numerous cases to the U.S. Supreme Court. In his financial disclosure, Gorsuch did not reveal the identity of the buyer. (Chief Justice John Roberts has still failed to deliver a binding code of ethics or enforceable standards for recusal.)

It is also noteworthy that Gorsuch’s two business partners in the LLC that owned the Colorado land were reportedly “two top lieutenants to Mr. (Philip) Anschutz,” an oil billionaire and Republican mega donor whom Gorsuch has been partners with since 2005. Gorsuch was outside counsel to Anschutz in the early 2000s. In 2006, Anschutz intervened to get Gorsuch a seat on the Court of Appeals for the Tenth Circuit, despite the fact that Gorsuch was not one of three reported finalists for the open seat. Gorsuch has also failed to recuse in other cases in which there was a clear perception of a conflict of interest, including Loper Bright v. Raimundo, in which Gorsuch’s ties to Anschutz prompted calls for recusal as Anschutz funded a number of groups that filed amicus briefs in that case, which ultimately overturned the Chevron precedent.

Gorsuch clerked for two right-wing Supreme Court Justices: Byron White (who was then one of two Supreme Court Justices that dissented from Roe v. Wade) and Anthony Kennedy. He also clerked for Judge David Sentelle (a Reagan appointee who is considered one of the most right-wing judges in the country and allied with Justice Clarence Thomas).

Gorsuch is the son of attorney Anne Gorsuch, a controversial Reagan administration appointee who was elected in 1976 to the Colorado legislature where “she was a member of a group that called itself the Crazies for its members’ passionate devotion to states’ rights and opposition to federal energy and environmental policies.” Reagan named her the administrator of the EPA after she was backed by “James Watt, who became Mr. Reagan’s interior secretary, and James Coors, the Colorado brewing and energy magnate”—Coors was an heir to the Adolph Coors brewing fortune that was used by the Coors family to launch the Heritage Foundation. Her mismanagement of the $1.6 billion toxic waste superfund was subject to a Congressional investigation, Anne Gorsuch refused to turn records over and became the first agency director in U.S history to be charged with contempt of Congress. In March 1983, after 22 months on the job, Reagan forced her to resign. Five years later in his Columbia University yearbook motto, Neil Gorsuch quoted Henry Kissenger, saying: “The illegal we do immediately, the unconstitutional takes a little longer.”

After George W. Bush appointed him to the U.S. Court of Appeals for the Tenth Circuit, Gorsuch issued several controversial rulings. Perhaps the most controversial was joining the majority in Hobby Lobby v. Sebelius, which declared that a huge for-profit corporation could deny employees coverage for contraceptives/birth control because of religious objections. In his concurring opinion, Gorsuch’s would have gone further, allowing the owners of the corporation to challenge the Affordable Care Act’s provisions protecting employee’s access to contraception. He asserted: “All of us face the problem of complicity. All of us must answer for ourselves whether and to what degree we are willing to be involved in the wrongdoing of others. For some, religion provides an essential source of guidance both about what constitutes wrongful conduct and the degree to which those who assist others in committing wrongful conduct themselves bear moral culpability. The Green family members are among those who seek guidance from their faith on these questions. Understanding that is the key to understanding this case.… No doubt, the Greens’ religious convictions are contestable. Some may even find the Greens’ beliefs offensive. But no one disputes that they are sincerely held religious beliefs.”

As Yuvraj Joshi wrote, even “Samuel Alito, writing for the majority of the Supreme Court in Hobby Lobby, cautioned that the decision in that case does not provide a ‘shield’ for discrimination ‘cloaked as religious practice.’ Justice Anthony Kennedy wrote in his concurrence that the exercise of one’s religion may not ‘unduly restrict other persons … in protecting their own interests,’ and that those interests are ‘compelling.’ Tellingly, Judge Gorsuch does not caution against religiously-motivated discrimination. If anything, he considers it inappropriate for courts to explore whether a religious objector’s alleged ‘complicity … in wrongful conduct’ of others has an actual basis in fact or faith.” (Notably, although the Bible does not expressly bar preventing pregnancy it does bar stealing but that bar did not stop Hobby Lobby from smuggling thousands of ancient artifacts stolen from Iraq.)

Since being appointed by Donald Trump to the U.S. Supreme Court, Gorsuch has voted in near lock-step with the right-wing faction on a barrage of activist rulings which have defined the Roberts Court. He has joined a campaign to selectively disregard decades of legal precedent in ways that have expanded the rights of corporations to evade environmental rules and other actions, while restricting Americans’ personal freedoms and limiting fair representation.

Recent Rulings

Gorsuch wrote the opinion in Grants Pass v. Johnson, described as “the most significant legal challenge to the rights of homeless people in decades.” The right-wing faction ruled that the “cruel and unusual” clause of the Eighth Amendment does not prohibit cities from enforcing homeless encampment bans. The ruling is expected to make life harder for people who are unhoused. At issue was a city ordinance banning public ”camping” in Grants Pass, a small town in Oregon with no public homeless shelter, that made it a crime, which could escalate to jail time, for a homeless person to sleep outside in public spaces with “bedding,” such as a pillow or sleeping bag.

Justice Sotomayor in her dissent, which she read from the bench, wrote “Sleep is a biological necessity, not a crime. For some people, sleeping outside is their only option. The City of Grants Pass jails and fines those people for sleeping anywhere in public at any time, including in their cars, if they use as little as a blanket to keep warm or a rolled-up shirt as a pillow. For people with no access to shelter, that punishes them for being homeless. That is unconscionable and unconstitutional. Punishing people for their status is ‘cruel and unusual’ under the Eighth Amendment… It is possible to acknowledge and balance the issues facing local governments, the humanity and dignity of homeless people, and our constitutional principles. Instead, the majority focuses almost exclusively on the needs of local governments and leaves the most vulnerable in our society with an impossible choice: Either stay awake or be arrested…”

Inventing Presidential Immunity from Criminal Prosecution; and Effectively Pardoning Trump

From the bench, Gorsuch has signed onto rulings protecting Trump, including the faction’s astonishing, ahistorical, and radical 6-3 ruling that in effect pardoned Donald Trump for any crimes he committed as President that could be construed as official acts of the executive of the United States. While this edict in theory allows Trump to be prosecuted for activities not cloaked as “official acts,” it also creates an unprecedented bar to the use of any evidence of his words or deeds related to official acts. The ruling ignores U.S. law since our nation’s founding that no person is above the law, including the president. It also ignores the language of the Constitution, which grants no such immunity and specifies that any official can be impeached for “high crimes and misdemeanors,” and the Constitution’s oath of office, which requires that a President “shall take Care that the Laws be faithfully executed.”

Prospectively, this reckless ruling gives license to a future president to use their powers as chief executive and commander-in-chief, including the use of emergency declarations, to dramatically alter the law and the stabilizing norms central to American democracy, our economy, and our way of life (such as limits on the politicization of the Department of Justice and independent agencies, the deployment of immigration police to conduct round-ups, and the use of the military in the U.S.) without fear of criminal prosecution.

Related cases: Fischer v. United States (6-3 ruling limiting the use of obstruction charges against those involved in the violent Jan. 6 insurrection); Trump v. Anderson (an unsigned edict restoring Trump to the Colorado ballot despite the 14th Amendment’s bar on insurrectionists holding office.)

Other Notable Rulings:

Overturning Judicial Deference to Agency Expertise; Limiting Statutes of Limitations

Gorsuch also joined a series of 6-3 rulings limiting the power of federal agencies and the experts and scientists within those agencies responsible for protecting consumers, workers, and even corporations, with regulations that keep products, food, our climate, medicines, and more safe and viable. In particular, Gorsuch has long been hostile to Chevron. In Relentless and Loper Bright, Gorsuch sided with litigation groups fueled with millions of dollars from Charles Koch’s fortune who sought to overturn the Chevron precedent. Although on the surface the case was about regulation of overfishing that threatens marine stocks, this ruling will allow special interests to challenge regulations promulgated to protect public health, our environment, and our bodily autonomy. Many such interests will likely use “judge-shopping” to find Trump appointees willing to substitute their views for the expertise of civil servants in federal agencies and issue orders suspending rules.

Related cases: Corner Post, Inc. v. Board of Governors of the Federal Reserve System (6-3 decision written by Barrett overturning the statute of limitations that provided that challenges to a federal regulation’s validity must be brought within six years of the rule’s issuance); SEC v. Jarkesy (6-3 ruling striking decades of practice allowing administrative law judges to assess violations of securities law and implicating other areas of the law).

Overturning Roe v. Wade; Eroding Church-State Separation; and Licensing Discrimination

Gorsuch also sided with the right-wing faction of the Court that overturned Roe v. Wade and federal constitutional protection for abortion in the 6-3 Dobbs ruling in 2022. The strident analysis in that opinion by Justice Samuel Alito calls into question the Court’s landmark rulings in Griswold v. Connecticut (protecting access to contraception) and in Obergefell v. Hodges (protecting marriage equality for LGBTQ+ Americans to marry the person they love). Gorsuch seemingly took only 10 minutes to approve the 98-page draft of the Dobbs opinion and made no changes.

In 2024, Gorsuch also joined a ruling that effectively postponed a decision to expand the Court’s anti-abortion agenda until after the 2024 election, by remanding a case challenging the FDA’s approval of the abortion drug mifepristone. The Court also remanded a case challenging federal law requiring that pregnant Americans have access to emergency room treatment for abortions if their health is in danger, even if not dying. However, Gorsuch joined with the most extreme Justices on the Court, Alito and Thomas, dissenting from the decision to dismiss the case.

Gorsuch also joined rulings eroding the separation of church and state, such as by allowing public monies to be spent on private school religious indoctrination. He authored a 6-3 ruling in the 303 Creative case allowing a web designer to claim a religious exemption from anti-discrimination laws based on her opposition to same-sex marriage–even though no gay couple had asked her to create a website for them, an example of how the faction dominating the Court has ignored the Constitution’s case or controversy requirement.

In the October 2021-2022 term, Gorsuch also authored the majority opinion in Kennedy v. Bremerton School District, a major victory for the religious right. The case centered around a high school football coach who held public prayer circles on the field that eventually the majority of the players joined in on. Bremerton High School’s principal said on record that one parent complained to them that their child “felt compelled to participate,” out of fear that “he wouldn’t get to play as much if he didn’t participate.”

Gorsuch’s opinion, joined in by Alito, Barrett, Roberts, Thomas, and in part by Kavanaugh, misrepresented key facts about the case and overruled a 1971 case, Lemon v. Kurtzman. Gorsuch opened his opinion, “Joseph Kennedy lost his job as a high school football coach because he knelt at midfield after games to offer a quiet prayer of thanks,” and claims that Kennedy, “offered his prayers quietly while his students were otherwise occupied.”

Gorsuch’s opinion repeatedly refers to Kennedy’s actions as a brief, private and quiet prayer, even though Kennedy’s prayer was extremely public. That ruling was also subject to a stinging rebuke in the dissent because the majority claimed that the coach’s prayer sessions were not in public, despite photographic proof. Sotomayor’s dissent blasted the majority opinion and Gorsuch’s gross misrepresentation of the facts of the case, flatly writing “To the degree the court portrays petitioner Joseph Kennedy’s prayers as private and quiet, it misconstrues the facts. The record reveals that Kennedy had a long-standing practice of conducting demonstrative prayers on the 50-yard line of the football field. Kennedy consistently invited others to join his prayers and for years led student-athletes in prayer at the same time and location. The court ignores this history. The court also ignores the severe disruption to school events caused by Kennedy’s conduct.” She also included three pictures of Kennedy in post-game prayer, surrounded by other players, undercutting Gorsuch’s false assertion that characterized it as a short, private prayer. While Kennedy allegedly sued to get his job back, after he was reinstated, he coached a single game before quitting and moving across the country to Florida.

Additionally, as detailed by Ian Millhiser, “In the real case that was actually before the Supreme Court, Coach Kennedy incorporated ‘motivational’ prayers into his coaching. Eventually, these prayers matured into public, after-game sessions, where both Kennedy’s players and players on the other team would kneel around Kennedy as he held up helmets from both teams and led students in prayer… When the Bremerton school district learned of Kennedy’s behavior, it told him to knock it off — though it did offer to accommodate Kennedy if he wanted to pray when he wasn’t surrounded by students and spectators. And Kennedy did end some of his most extravagant behavior… But Kennedy also went on a media tour, presenting himself as a coach who ‘made a commitment with God’ to outlets ranging from local newspapers to Good Morning America. And Kennedy’s lawyer informed the school district that the coach would resume praying at the 50-yard line immediately after games. At the next game following this tour, coaches, players, and members of the public mobbed the field when Kennedy knelt to pray. A federal appeals court described this mob as a ‘stampede,’ and the school principal said that he ‘saw people fall’ and that, due to the crush of people, the district was unable ‘to keep kids safe.’ Members of the school’s marching band were knocked over by the crowds.”

Gorsuch also claimed there was “no indication in the record that anyone expressed any coercion concerns to the District,” and wrote that Kennedy was acting as a “private citizen,” despite the the fact that the coach “advertised in the area’s largest newspaper, and local and national TV stations, that he intended to defy BSD’s instructions not to publicly pray with his players while still on duty even though he said he might lose his job as a result. As he said he would, Kennedy prayed out loud in the middle of the football field immediately after the conclusion of the first game after his lawyer’s letter was sent, surrounded by players, members of the opposing team, parents, a local politician, and members of the news media with television cameras recording the event, all of whom had been advised of Kennedy’s intended actions through the local news and social media,” as described by judge Milan Smith of the 9th Circuit Court of Appeals.

Limiting the Voting Rights Act; Allowing Partisanship to Mask Racist Voting Map Drawing

Gorsuch also joined 6-3 rulings further limiting the power of the Voting Rights Act. In Alexander v. South Carolina State Conference of the NAACP, the faction dominated the court overturned decades of precedent protecting against racial gerrymandering. The ruling allowed a voting map that had bleached more than 30,000 Black residents out of their traditional congressional district based on the claim by the Republican-dominated South Carolina legislature that the even though the maps had a profoundly disparate impact on Black American voters that such maps could not be held unconstitutional or in violation of the Voting Rights Act so long as there were a partisan rationale for the map drawing. This ruling overturned the findings by the lower courts that the map was an illegal racial gerrymander, and it joins a series of rulings by the Roberts’ Court degrading the landmark Voting Rights Act of 1965.

Also noteworthy:

In late 2021, as the Omicron variant of Covid-19 was surging and the court resumed in person arguments, Chief Justice Roberts reportedly asked justices on the court to wear a mask because of Justice Sonia Sotomayor’s elevated risk of complications from the disease because of her diabetes. Gorsuch was the only justice to refuse, pushing Sotomayor to participate remotely. As Yvette Broja wrote in Balls and Strikes, “Roberts could have responded here by instituting a blanket remote argument policy, for example, or by forcing Gorsuch to be the one participating from chambers. Instead, Roberts elected to punish Sotomayor—and, incidentally, the other justices who still have to sit next to Neil Gorsuch’s bare face—for her colleague’s exhausting anti-masker bullshit.”