Gorsuch Freezing-Trucker Case Boosts Business Hopes at Top CourtBy
Chamber of Commerce VP calls Supreme Court pick ‘fantastic’
Liberal groups say he rules for companies and against workers
Judge Neil Gorsuch wasn’t saying truck driver Alphonse Maddin was wrong to abandon his trailer on the side of the road after waiting several hours in subzero temperatures for a repair truck.
Gorsuch just wasn’t willing to say Maddin’s employer, TransAm Trucking Inc., broke the law by firing him. Gorsuch’s opinion in Maddin’s case last year hints at how companies might benefit if the 49-year-old jurist is confirmed as the next U.S. Supreme Court justice.
"It might be fair to ask whether TransAm’s decision was a wise or kind one," Gorsuch wrote. "But it’s not our job to answer questions like that. Our only task is to decide whether the decision was an illegal one."
Gorsuch, nominated Tuesday by President Donald Trump, has a generally company-friendly record in his decade on a Denver-based federal appeals court. Tom Collamore, senior vice president of the U.S. Chamber of Commerce, called it a "fantastic nomination" before a meeting with Trump at the White House on Wednesday.
Gorsuch’s supporters say he simply follows the law where it leads him -- sometimes favoring business, as happened in the Maddin case, and sometimes not. Consumer and worker advocates say Gorsuch would worsen what they already see as a pro-business slant at the Supreme Court.
"Gorsuch would likely continue the Supreme Court’s trend of ruling in favor of corporations and against American workers and consumers," said Neera Tanden, president of the liberal Center for American Progress.
His biggest impact could come on the federal regulations that businesses say have grown too burdensome. Gorsuch favors overturning a 1984 Supreme Court decision, known to lawyers as Chevron, that requires judges to defer to federal agencies when the statutory language that governs their work is ambiguous. Gorsuch says the Constitution requires that judges have the final word on the meaning of federal laws.
A Supreme Court decision toppling Chevron could open a myriad of regulations -- affecting power plants, banks and employers -- to new legal challenges. But it also could cut both ways, given that Republicans for at least the next four years will control the federal agencies that issue new rules.
"You can’t confidently say it’s going to result in outcomes that are pro-business or outcomes that are anti-business," said Greg Garre, a Washington lawyer at Latham & Watkins and formerly the top Supreme Court advocate for President George W. Bush’s administration.
Billy Corriher, a lawyer at the Center for American Progress, says that over the long term, overruling Chevron would be a blow to important regulatory efforts.
On Court for Life
"This justice is going to be on the court for life," Corriher said. "I’m looking ahead to future administrations when we are going to have important environmental programs and other things that have to go before Judge Gorsuch when they are inevitably challenged in court."
The Maddin case is a part of a long list of Gorsuch opinions that people on both sides are scrutinizing as Democrats contemplate whether to try to block a vote on the nomination on the Senate floor.
In a 2011 case involving a worker who was electrocuted during a mining-construction project, Gorsuch said he would vote to overturn the Occupational Safety and Health Review Commission’s finding that his employer improperly trained him. In 2009 he voted to toss out a sex-discrimination claim by a United Parcel Service Inc. worker, though he joined two colleagues in saying she could press a separate retaliation claim.
Before he became a judge, Gorsuch argued in favor of curbing class action securities-fraud suits. He wrote that in many cases their primary effect is to pressure companies into settlements, with most of the proceeds going to lawyers rather than investors.
‘Investments are Deterred’
"As a result, new corporate investments are deterred, the efficiency of the capital markets is reduced, and the competitiveness of the American economy declines," Gorsuch wrote in a paper for the Washington Legal Foundation.
Joseph Tabacco, a securities litigator at Berman DeValerio in San Francisco, said Gorsuch’s paper was a “hit piece” against private fraud suits. The article relied on an unbalanced formula of “snippets and footnotes” in an attempt to sway judges and lobbyists, and attract corporate clients, he said.
Gorsuch later made similar arguments on behalf of the Chamber of Commerce in a securities-fraud case at the Supreme Court. His side won a unanimous decision, with the court saying lawsuits must allege a direct connection between the fraud and a subsequent decline in share prices.
Gorsuch’s views about class actions were shaped by a decade in private legal practice at the Washington law firm Kellogg Huber. Garre says that experience is something else that will help businesses -- as well as other litigants.
"He is keenly aware of the potential abuse in the civil litigation practice," Garre said. "Having a justice who comes to the court with that real-world practice would be welcome for the rest of us who have to practice in this world."