March 20, 2017 Assessing SCOTUS Nominee Neil Gorsuch’s Judicial Record As Judge Neil Gorsuch’s confirmation hearings begin today, senators are likely to draw comparisons to the man whose seat he is seeking to fill, the late Justice . While Gorsuch’s rulings align with several conservative values — regularly defending religious freedom and criticizing the growth of federal regulation — President may at times be disappointed with Gorsuch’s rulings if he is confirmed. Like Scalia, Gorsuch rejects a “results-oriented” judicial approach and is a textualist, interpreting the law as it is written, not as it was intended.

Gorsuch’s Dissents on the 10th Circuit Court During his tenure on the 10th Circuit, Gorsuch’s authored opinions included the lowest rate of dissents written by other judges. Gorsuch and Holmes are the two most junior judges, so it make senses their opinions attracted lower rates of dissents over the same period than the most senior judges, who author more controversial majority opinions. When it came to his own dissents, Gorsuch fell in the middle, dissenting on 1.6 percent of majority opinions — often when he felt the opinion was too broad in scope, the Congressional Research Service notes. While these might provide insight into how Gorsuch approaches legal issues, it can be difficult to predict how a new justice might behave on the high court based on their previous rulings. Compared with the Supreme Court, federal appellate courts hear many more cases, have less freedom to choose the ones they hear, and because cases are generally less controversial, most opinions are unanimous.

How often 10th Circuit authors’ majority opinions included dissents Gorsuch’s dissent rate relative to 10th Circuit peers Aug. 8, 2006 to Jan. 31, 2017, as reported on Lexis Aug. 8, 2006 to Jan. 31, 2017, as reported on Lexis

AUTHOR PERCENTAGE OF OPINIONS WITH DISSENT OR CONCURRENCE JUDGE PERCENT DISSENTED OR CONCURRED

Paul Joseph Kelly, Jr. 4.4% 1.5% 2.1% 1.4%

Mary Beck Briscoe 3.3% 2.0% Carlos F. Lucero 1.9% 1.2%

Carlos F. Lucero 2.4% 1.1% Harris L. Hartz 1.7% 2.5%

Timothy M. Tymkovich 2.0% 1.1% Neil Gorsuch 1.6% 1.5%

Jerome A. Holmes 1.9% 2.2% Timothy M. Tymkovich 1.3% 0.7%

Harris L. Hartz 1.8% 2.3% Paul Joseph Kelly, Jr. 1.2% 0.5%

Neil Gorsuch 1.5% 1.8% Jerome A. Holmes 0.6% 1.2%

Note: Tallies do not include dissents or concurrences on majority opinions judges authored themselves nor recusals, and only includes judges who served with Gorsuch for his entire tenure.

Supreme Court rulings on 10th Circuit Court cases in which Gorsuch joined or authored majority opinion

10TH CIRCUIT CASE RELEVANT 10TH CIRCUIT HOLDING GORSUCH’S ROLE SCOTUS VOTE AND DECISION

Warner v. Gross, 776 Use of the drug midazolam in executions by lethal Joined majority opinion A rmed (5-4), Glossip v. Gross, F.3d 721 (10th Cir. 2015) injection was unlikely to violate the Eighth Amendment’s _ U.S. _, 135 S. Ct. 2726 (2015) prohibition against cruel and unusual punishment.

Direct Mktg. Ass’n v. The Tax Injunction Act bars a suit in federal court Joined majority opinion Reversed (9-0), Direct Mktg. Brohl, 735 F.3d 904 seeking to enjoin enforcement of a state law requiring Ass’n v. Brohl, _ U.S. _, 135 S. (10th Cir. 2013) online retailers to report sales and use tax information Ct. 1124 (2015) to customers and the state’s revenue department.

Hobby Lobby Stores, Inc. The Religious Freedom Restoration Act of 1993 likely Joined majority and A rmed (5-4), Burwell v. v. Sebelius, 723 F.3d 1114 prohibits the federal government from requiring closely plurality opinions Hobby Lobby Stores, _ U.S. _, (10th Cir. 2013) (en banc) held corporations that hold religious objections 134 S. Ct. 2751 (2014) to certain contraceptive services to provide coverage of those services in employee health plans.

United States v. The government does not need to prove that a defen- Joined majority opinion A rmed (9-0), Loughrin v. Loughrin, 710 F.3d 1111 dant intended to defraud a bank to secure a conviction United States, _ U.S. _, 134 (10th Cir. 2013) under a provision of the federal bank fraud statute. S. Ct. 2384 (2014)

Tarrant Reg’l Water Oklahoma may restrict Texas water users’ access Joined majority opinion A rmed (9-0), Tarrant Reg’l Dist. v. Herrmann, 656 to water in the Red River basin because an interstate Water Dist. v. Herrmann, _ U.S. _, F.3d 1222 (10th Cir. 2011) water compact does not grant one state a right 133 S. Ct. 2120 (2013) to take water located in another state.

United States v. Dolan, A sentencing court retains the power to order a Authored majority opinion A rmed (5-4), Dolan v. United 571 F.3d 1022 (10th Cir. convicted criminal to pay mandatory States, 560 U.S. 605 (2010) 2009) even though it missed a statutory deadline.

Source: Congressional Research Service, using the LEXIS database for all 10th Circuit decisions By Janie Boschma, Pro DataPoint from the date of Gorsuch’s commission through the date of his nomination to the Supreme Court