The Tenth Circuit could be sending a native up to the Supreme Court. On Tuesday, President Trump announced that Neil Gorsuch will be his nominee to replace the late Justice Scalia. If confirmed by the Senate, Gorsuch would be the first Coloradan on the Court since Justice Byron White and the first Tenth Circuit judge, by our count, to ever make it to the High Court.
With just over ten years serving on the Tenth Circuit, Gorsuch has penned many opinions worth review. Here are, ahem, our top ten.
In his concurrence to the Tenth Circuit's Hobby Lobby decision, Gorsuch goes further than the majority, arguing that courts should defer to individuals when it comes to determining whether a law burdens their religious practice. (Gorsuch repeated this argument a few years later, in his dissent to Little Sisters of the Poor v. Burwell.)
Another religious freedom case, here a prisoner sought access to a prison yard sweat lodge for religious reasons -- only to be denied because he was housed in the wrong prison unit. The Tenth allowed Yellowbear to pursue his suit against the prison, with Gorsuch writing that "[w]hile those convicted of crime in our society lawfully forfeit a great many civil liberties ... sincere exercise of religion should not be among them".
More religion cases! (We swear, they're not all religious decisions.) In two dissents from denials of rehearings en banc, Gorsuch made a powerful argument against the "reasonable observer" test in Establishment Clause cases. Writing in American Atheists, he claimed that the Tenth's observer, rather than being "a personification of a community ideal of reasonable behavior" was "biased, replete with foibles," and over inclined to spot Establishment Clause violations where none exist.
In this case, Gorsuch penned both the majority and a separate concurrence. It's the concurrence that matters. In it, Gorsuch argued that it's time to revisit the Chevron doctrine and ensuing caselaw that give too much power to administrative agencies. It's a good intro both to Gorsuch's views on the administrative state, as well as to his talents as a writer.
Here, Gorsuch took on the non-delegation doctrine. In a dissent to the denial of a rehearing en banc, Gorsuch asserted that the federal sex offender law gave the DOJ too much leeway to apply the law. "[T]he framers of the Constitution," he wrote, "thought the compartmentalization of legislative power not just a tool of good government ... but essential to the preservation of the people's liberty."
Another dissent, here Gorsuch argued that property owners should be able to revoke an "implied license" allowing police onto their land, or curtilage -- in this case, with a no trespassing sign placed in the yard. If that's not clear enough, Gorsuch posits, gibing his colleagues, maybe this will do: "the implied license discussed by the United States Supreme Court in Breard v. Alexandria, 341 U.S. 622 (1951) and Florida v. Jardines, 133 S. Ct. 1409 (2013) is hereby revoked."
How will Gorsuch handle legal issues involving cutting-edge technologies? This opinion might give us some hints. In a ruling over copyrights and 3D modeling, Gorsuch found no copyright protection -- not because digital models were excluded as models, but because the models at issue simply weren't independent creations, but "(very good) copies."
Gorsuch has been called a jurist in the model of Antonin Scalia and this opinion (another dissent from a denial of a rehearing en banc) demonstrates their similarities: a strong textualist view of statutory interpretation, a rejection of legislative history, and a concern for the rights of criminal defendants.
Like Scalia, Gorsuch has been skeptical of the Dormant Commerce Clause, though he hasn't rejected it as forcefully as the late justice. In this case, Gorsuch declined to apply the Dormant Commerce Clause, upholding a Colorado clean energy program that plaintiffs had claimed would impact energy producers in other states.
Though he's a native of Colorado, Gorsuch's rocky mountain high doesn't extend to discovery in a marijuana-related tax dispute. When a Colorado dispensary was forced to pay taxes on business expenses, they argued that they shouldn't have to disclose the nature of their business, under the Fifth Amendment's bar against self-incrimination.
Gorsuch disagreed, but not before expressing frustration at the federal government's divided approach to marijuana laws -- a lack of prosecution by the DOJ and a refusal to treat marijuana businesses like any other by the IRS. "So it is that today," Gorsuch wrote, "prosecutors will almost always overlook federal marijuana distribution crimes in Colorado but the tax man never will."
- With Gorsuch, Nothing Could Change -- or Everything Could (FindLaw's U.S. Supreme Court Blog)
- Mining Company Can Cross Grouse Rancher's Land: 10th Cir. (FindLaw's U.S. Tenth Circuit Blog)
- Tenth Circuit Talks About the Ghosts of Escape Clauses Past (FindLaw's U.S. Tenth Circuit Blog)
- Colorado Pot Dispensary Loses Tax Fight at 10th Cir. (FindLaw's U.S. Tenth Circuit Blog)