Senate confirms ‘proemployer’ Gorsuch to Supreme Court

April 07, 2017 - by: Kate McGovern Tornone 0 COMMENTS

The Senate has confirmed President Donald Trump’s nominee to the U.S. Supreme Court, Neil Gorsuch. Because Gorsuch is known for adhering to the letter of the law, his confirmation likely is good news for employers, experts say.

Democrats initially filibustered Gorsuch’s confirmation, but Republicans invoked the “nuclear option” and changed the Senate rules to allow them to break filibusters of Supreme Court nominees with only 51 votes. Previously, that required 60 votes. On April 7, the Senate confirmed Gorsuch 54-45.

Employment law attorneys have said Gorsuch is known for adhering to the letter of the law. That means he won’t create any new rights through judicial activism, said John Husband, an editor of Colorado Employment Law Letter and a senior partner at Holland & Hart in the judge’s hometown of Denver.

Gorsuch offered a similar sentiment following his nomination, promising to interpret laws and the U.S. Constitution strictly. “In our legal order, it is for Congress and not the courts to write new laws,” he said. “It is the role of judges to apply, not alter, the work of the people’s representatives. A judge who likes every outcome he reaches is very likely a bad judge, stretching for results he prefers rather than those the law demands.”

That philosophy is good news for employers, said Husband. Gorsuch is “an excellent choice for employers. He follows the law to a T,” Husband said. “He’s going to be a very, very pro-employer justice.”

Gorsuch, who comes from the U.S. 10th Circuit Court of Appeals, is known for his role in the Hobby Lobby decision. In that case, he joined the 10th Circuit’s opinion that employers can claim a religious exemption from the Affordable Care Act’s mandate to cover birth control in health plans. The Supreme Court later agreed.

Gorsuch’s other employment-related opinions, however, have had varying outcomes, according to H. Juanita Beecher, of counsel with Fortney & Scott and an editor of Federal Employment Law Insider. “He doesn’t always side with employers[,] and he doesn’t always side with employees,” she said. According to Beecher, his confirmation simply brings the Court back to where it was with Justice Antonin Scalia.

Federal regulations, however, could face additional scrutiny by the Supreme Court now, according to Beecher. It’s no secret that Gorsuch isn’t a fan of “Chevron deference,” a legal standard under which courts defer to federal enforcement agencies’ regulatory interpretation of laws. Regulations issued by the Obama administration could be particularly at risk, Beecher said.

One of Gorsuch’s first opportunities to weigh in on an employment law issue may be in a case challenging class action waivers. Earlier this year, the high court agreed to hear a trio of wage and hour cases involving arbitration agreements that require workers to waive their right to pursue employment claims as a group.

Gorsuch also may have the opportunity to consider whether Title VII of the Civil Rights Act of 1964 prohibits discrimination based on sexual orientation. The issue has caused a split among the federal courts of appeal and could soon be ripe for Supreme Court review, Beecher and Husband said.

About Kate McGovern Tornone:
Kate Tornone is an editor at BLR. She has almost 10 years’ experience covering a variety of employment law topics. Before coming to BLR, she served as editor of Thompson Information Services’ ADA and FLSA publications, coauthored the Guide to the ADA Amendments Act, and published several special reports. She graduated from The Catholic University of America in Washington, D.C., with a bachelor of arts in media studies. Kate can be reached at ktornone@blr.com.
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