Tuesday, February 7, 2017

What Can Employers Expect from Judge Gorsuch?

The big news of last week was President Trump’s decision to nominate Judge Neil Gorsuch to a seat on the Supreme Court. Judge Gorsuch is a respected conservative judge with over a decade of experience on the appeals court, so we have a pretty good idea of what his judicial philosophy is. Keeping that in mind, what can employers expect out of Judge Gorsuch once he ascends to the highest court?

Gorsuch, who many have remarked seems like a younger version of the justice he replaces, Antonin Scalia, has compared his role as a judge to that of the “instant replay booth in football: the call on the field presumptively stands and we may overturn it only if we can fairly say that no reasonable mind could, looking at the facts again, stand by the call.” Laborers' Int'l Union of N. Am., Local 578 v. N.L.R.B., 594 F.3d 732, 739 (10th Cir. 2010).

Like Scalia, he is a committed textualist, which means that he will apply a statute as it is written, and not read anything into it that does not appear in the words of the statute. He has stated that “it is our job and work enough for the day to apply the law Congress did pass, not to imagine and enforce one it might have but didn’t.” TransAm Trucking, Inc. v. Admin. Review Bd., United States Dep't of Labor, 833 F.3d 1206, 1217 (10th Cir. 2016). This means that he would likely reject the EEOC’s broad reading of employment statutes during the last few years, which have, among other things, held that Title VII of the 1964 Civil Rights Act prohibits discrimination based on sexual orientation, even though no such language is found in the statute.

Gorsuch also supports weakening the power of administrative agencies like the EEOC and the NLRB. Gorsuch is opposed to Chevron deference, which requires courts to defer to agency interpretations of ambiguous statutes. He believes that courts should have the final say in deciding how a statute is interpreted. Seeing how the EEOC and NLRB are generally a thorn in the side of employers, particularly in the last few years of the Obama Administration, judicial decisions that limit their authority will almost certainly benefit employers.

It is unlikely that Gorsuch’s appointment to the Supreme Court will have an immediate impact on employers or workers. He must be vetted by the Senate Judiciary Committee and then confirmed by the Senate, so he likely will not take the bench until March or April.

Additionally, there are not any significant labor and employment cases currently before the Court, although it can still add cases before the end of its term in June. It is possible that in the next few years the Court will be looking to reconsider a high profile union dues case it ruled on last year. As we discussed, the Court was ready to hold that mandatory union dues violate the First Amendment until Justice Scalia’s sudden passing forced a 4-4 tie on the case, allowing to stand the decision of the lower court that mandatory union dues do not violate the First Amendment.

As always, stay tuned to our blog, where we will report on legal developments affecting the workplace.