On January 31, 2017, President Trump nominated Neil Gorsuch to fill the nearly year-long vacancy on the Supreme Court left by Justice Scalia. Judge Gorsuch, currently on the Tenth Circuit Court of Appeal, is likely a welcome choice for employers. His employment decisions generally—though not always—have favorable outcomes for employers. However, he does not appear to be a trailblazer on employment issues, but rather applies established precedent that generally favors employers. His employment decisions do not tend to draw dissent, bolstering the view that his opinions are not significant departures from Tenth Circuit and Supreme Court precedent. (Of course, not all agree. Senator Elizabeth Warren describes him as having “twisted himself into a pretzel to make sure the rules favor giant companies over workers and individual Americans. He has sided with employers who deny wages, improperly fire workers, or retaliate against whistleblowers for misconduct. He has ruled against workers in all manner of discrimination cases.”)
Perhaps more important than any of his individual employment opinions are his dissenting and concurring decisions that illuminate his judicial philosophy. For example, in his dissent in TransAm Trucking, Inc. v. Administrative Review Board, he took a textualist approach to interpreting a federal law prohibiting employers from firing employees who “refuse to operate a vehicle” out of safety concerns. In that case, the plaintiff was terminated for operating a vehicle in a manner that he deemed safe but that was contrary to his employer’s instruction. Judge Gorsuch opined:
It might be fair to ask whether TransAm’s decision was a wise or kind one. But it’s not our job to answer questions like that. Our only task is to decide whether the decision was an illegal one. The Department of Labor says that TransAm violated federal law, in particular 49 U.S.C. § 31105(a)(1)(B). But that statute only forbids employers from firing employees who “refuse[ ] to operate a vehicle” out of safety concerns. And, of course, nothing like that happened here.
He further rejected the majority’s view that the statute was ambiguous (and therefore warranted Chevron deference) simply because certain terms lacked statutory definitions and instead advocated simply consulting a dictionary. Judge Gorsuch additionally rejected resorting to legislative history:
[S]tatutes are the products of compromise, the sort of compromise necessary to overcome the hurdles of bicameralism and presentment. And it is our obligation to enforce the terms of that compromise as expressed in the law itself, not to use the law as a sort of springboard to combat all perceived evils lurking in the neighborhood. . . Whatever the case, 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.
In Gutierrez-Brizuela v. Lynch, Judge Gorsuch wrote the majority opinion, but also wrote a concurrence expounding on his view of the degree of deference that should be afforded to administrative agencies. In his view, the expansive deference provided by the Supreme Court in Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc. “permit[s] executive bureaucracies to swallow huge amounts of core judicial and legislative power and concentrate federal power in a way that seems more than a little difficult to square with the Constitution of the framers’ design.” While Gutierrez-Brizuela is an immigration case, the views Judge Gorsuch expressed could have huge implications in the employment context with respect to deference to the EEOC or NLRB, which is more likely to help, not hurt, employers.