Noah Feldman, Columnist

The Supreme Court Didn't Really Smack Down Gorsuch

The judge's denial of aid for an autistic student applied the law at the time. Now the law's changed.

March 23, 2017 at 7:45 PM UTC

Noah Feldman is a Bloomberg Opinion columnist. A professor of law at Harvard University, he is author, most recently, of “To Be a Jew Today: A New Guide to God, Israel, and the Jewish People."

Just doing his job.
Photographer: Aaron P. Bernstein/Bloomberg

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It seems like a perfect storm: Democrats on the Senate Judiciary Committee were pounding Judge Neil Gorsuch for an opinion he wrote denying assistance to an autistic child, and while he was testifying, the U.S. Supreme Court unanimously rejected the standard Gorsuch relied on to do it. The justices’ opinion is the right one, and the standard Gorsuch’s court used was wrong. But unfortunately for Democrats, Gorsuch wasn’t wrong to apply it: It was the binding legal rule in the 10th Circuit, established in 1996, long before he joined the U.S. Court of Appeals. So don’t believe the hype. The Supreme Court didn’t smack down President Donald Trump’s nominee for its empty seat. It just rejected the precedent created by his circuit.

At issue in these cases is the proper interpretation of the Individuals with Disabilities Education Act. That law requires states that get federal school funding to provide a “free appropriate public education” to disabled kids. To do so, the schools create individual education programs for each child. A family seeking private or at-home tutoring for its kids ordinarily argues that the public school isn’t enabling the child to meet the goals set by the individual program.