If 10th Circuit Court of Appeals Judge Neil Gorsuch survives what might be a bruising confirmation process and joins the U.S. Supreme Court, employers can expect a generally sympathetic justice in the mold of the late Antonin Scalia, whom he would replace.
“Judge Gorsuch’s judicial philosophy follows that of his predecessor Justice Scalia as an ‘originalist,’ meaning that he relies on the text of the U.S. Constitution as originally written, not as it might be interpreted by reference to recent events,” said Ogletree Deakins attorney Hal Coxson.
Since he became a federal judge in 2006, Gorsuch has not issued a particularly large number of employment law decisions, but he does have a track record backing employers. “On the whole, Judge Gorsuch’s written opinions on labor and employment issues do not appear to contain any unpleasant surprises for employers,” according to Littler Mendelson attorneys Ilyse Schuman and Michael Lotito.
Several Gorsuch rulings have been skeptical of granting too much power to regulatory agencies such as the Department of Labor and the National Labor Relations Board.
Gorsuch issued one of his most influential opinions in 2013, a concurrence to Hobby Lobby Stores, Inc. v. Sebelius. The Supreme Court eventually affirmed the 10th Circuit’s ruling that religiously devout business owners had standing to challenge the Affordable Care Act’s contraceptive mandate.
According to an analysis by the Jackson Lewis law firm, Gorsuch has been a stickler for requiring employees to meet filing deadlines when bringing discrimination complaints, turning aside motions arguing for grace periods. He has rejected several federal whistleblower claims based on strict readings of statutory language.
Senate Democrats—still angry about Republicans’ 10-month refusal to even meet with Judge Merrick Garland, President Obama’s choice to replace Scalia—promised rigorous questioning during Gorsuch’s confirmation process.
Union leaders quickly announced their opposition to Gorsuch.