Neil Gorsuch’s Four Years of Cruelty from the Bench

This month marks the four-year anniversary of Neil Gorsuch’s confirmation to the Supreme Court after Republicans changed Senate rules —refusing to give Merrick Garland even a hearing for nearly a year — to ram Gorsuch through and put him on the bench.

As Alliance for Justice wrote at the time, Gorsuch “would put the agenda of powerful special interests ahead of the rights of everyday people” and “undermine countless laws that protect consumers and workers… and protect civil rights.”

This was clear from Gorsuch’s record on the Tenth Circuit Court of Appeals. As just one example, Gorsuch authored a callous dissent, disagreeing with six other judges, in the case of Alphonse Maddin, a truck driver who was illegally fired for leaving his trailer to seek shelter after the trailer broke down and the truck lost heat in subzero temperatures, putting his life at risk. Gorsuch argued that Mr. Maddin was not entitled to any relief after being fired for trying to save his own life, narrowly interpreting the law to write that the only thing Maddin was entitled to do was wait in his truck in freezing temperatures.

Since taking the bench, the concerns AFJ raised about Gorsuch’s open hostility to workers, consumers,  women, people of color, LGBTQ Americans, immigrants, and more have proven to be accurate: Gorsuch has joined, and in many cases authored, some of the Court’s most egregious opinions seeking to roll back the clock on civil rights and legal protections. Perhaps most stunning is just how radical his legal philosophy is writ large, displaying a willingness to overturn bedrock precedents like Gideon v. Wainwright, which guarantees the right to an attorney in state criminal cases, and attempting to resurrect unworkable and long-defunct legal principles like the non-delegation doctrine.

Just a few examples of Gorsuch’s most harmful decisions include:

• Assaulting workers’ rights: In one of his very first opinions on the Supreme Court, Gorsuch made it harder for victims of wage theft to hold their employers accountable, stripping them of rights that had previously been guaranteed by federal law. Just a month later, he cast the deciding vote to overturn a 40-year-old precedent and undermine the rights of workers to fight for better wages and working conditions through collective bargaining, and cast the deciding vote in finding 100,000 auto service workers ineligible for overtime pay under federal law, seemingly contrary to 50 years of precedent. As a result of these decisions, millions of workers across the country will work for less pay and fewer benefits, with limited ability to respond to mistreatment by their employers.
• Threatening the health of the American people: In case after case, Gorsuch has determinedly struck down efforts to protect the public during the COVID-19 pandemic. He has joined opinions holding that restrictions on religious gatherings are discriminatory, even when identical restrictions also apply to secular conduct. In one instance he claimed that justices who would uphold COVID-related orders were “cutting the Constitution loose,” drawing a rebuke from Chief Justice Roberts, who noted that Gorsuch was “reach[ing] beyond the words” of his colleagues to impugn them. In multiple instances, he voted against requiring jails to implement basic health measures to address a COVID-19 outbreak, putting inmates at severe health risk.

  Gorsuch also repeatedly made it more difficult for people to safely exercise their right to vote during the pandemic. He voted to strike down an order allowing curbside voting, meant to protect voters who were sick or elderly, and refused to restore an extended absentee ballot deadline in Wisconsin meant to help accommodate the large increase in people planning to vote by mail. These decisions forced Americans to choose between their health and their right to vote.

• Undermining our democracy: On the bench, Gorsuch has repeatedly joined opinions that help to entrench Republican lawmakers in positions of political power in spite of their lack of popular support. He joined an opinion holding that politically-motivated gerrymandering can never be challenged in federal court, and he voted to reverse lower-court findings that Republican legislators in Texas intentionally discriminated against Latino voters when they adopted a gerrymandered congressional map that made it more difficult for those voters to elect candidates of their choice, even going so far as to question the essential democratic principle of “one person, one vote.” And after Donald Trump tried to rig the census — which requires counting all people in the country — by adding a citizenship question in order to dissuade undocumented immigrants from responding, Gorsuch voted in favor of allowing the change and erasing people of color across the country from representation.Gorsuch has also consistently supported measures restricting people’s ability to vote. He voted to uphold a North Dakota voter ID law that required voters state their residential address, which many Native Americans living on tribal land do not have, leaving them subject to disenfranchisement. He similarly voted to uphold an Ohio law that strikes people from the voter rolls if they do not vote frequently enough, effectively depriving them of their fundamental rights.
• Eroding a fair criminal justice system: Gorsuch has repeatedly shown that he supports narrowing the rights people have in our criminal justice system. He joined a radical dissent questioning the landmark precedent of Gideon v. Wainwright, which guarantees the right to an attorney in state criminal cases. Gorsuch also dissented from a decision finding that prosecutors in Mississippi had improperly excluded black jurors from the murder trial of Curtis Flowers, a black defendant. The dissent derided a “supposed” history of discrimination against Mr. Flowers, when in reality, Flowers had been tried six times, with black jurors systematically excluded in nearly every instance, and the Mississippi Supreme Court had previously identified both prosecutorial misconduct and racial discrimination in jury selection. Nevertheless, Gorsuch would have upheld his death sentence.Gorsuch has also been a consistent proponent of federal executions. He joined an unsigned opinion resulting in the government resuming federal executions for the first time in 17 years, ignoring concerns about the use of pentobarbital, which has been found to frequently cause severe pain, suffocation, and frothing at the mouth while inmates remain alive. Since then, Gorsuch and the Court’s other conservatives, through unsigned orders on the Court’s “shadow docket,” have approved a slew of federal executions, including of a woman so severely mentally ill that she did not understand she was sentenced to die, a man whose COVID-19 infection meant that lethal injection would cause him to experience “a sensation of drowning,” and a black man who alleged he was convicted only after prosecutors improperly ensured his case was decided by an all-white jury. Ultimately, Gorsuch helped to facilitate an astounding 13 executions rushed through in the final six months of the Trump administration.
• Acting with cruelty toward immigrants: At every turn, Gorsuch has voted against protections, basic rights, and even humane treatment for immigrants and asylum seekers. He cast the deciding vote to uphold Trump’s xenophobic and discriminatory Muslim ban and would have permitted the deportation of over 700,000 DREAMers by ending the DACA program, joining a dissenting opinion calling the reliance interests of the hundreds of thousands of young people who have benefited from the program “irrelevant.”

  In addition to these decisions, Gorsuch also joined an opinion holding that asylum seekers have no right to judicial review of their claims, a ruling that allowed for faster deportation of countless asylees fleeing violence and persecution in their home countries. He also approved an immigrant “wealth test,” upholding a Trump administration rule designed to deny legal status to immigrants who legally access public benefits. And Gorsuch callously voted in favor of moving forward with the deportation of Andre Martello Barton, a legal U.S. resident, repair shop manager, and father of four who was detained by the Trump administration over a 10-year-old drug possession conviction. As a result of Gorsuch’s record, millions of longtime U.S. residents, many of whom were brought here as children, could face deportation on a whim, and asylees seeking a better life in the United States can more easily face inhumane treatment.

• Denying LGBTQ rights and protections: Aside from a single ruling supporting LGBTQ employment protections in Bostock v. Clayton County, Gorsuch has established a long record of ruling against LGBTQ people. For example, after Donald Trump announced on Twitter that he would ban transgender people from serving in the military, Gorsuch voted in favor, without issuing a written opinion, of allowing the ban to go into effect. As a result, over 15,000 active duty or reserve military personnel were denied the opportunity to serve their country until President Biden reversed Trump’s ban in 2021. Gorsuch also ruled against Charlie Craig and David Mullins, two men who were denied a custom wedding cake from a local baker (Jack Phillips of Masterpiece Cakeshop) because they were gay. Though the Court ruled in favor of Phillips  on narrow grounds, Gorsuch went further, writing an extensive hypothetical arguing that refusing to bake an anti-gay cake might constitute religious discrimination, and joining an opinion arguing that requiring a baker to make a custom cake — regardless of whether his reason for refusal is discriminatory — would violate the First Amendment.

  Gorsuch also dissented from a decision that struck down an Arkansas Supreme Court decision that allowed the government to discriminate against same-sex couples by refusing to list both members of the couple on their children’s birth certificates. Even though this clearly contradicted the precedent set by Obergefell, which guarantees same-sex couples the same rights of opposite-sex couples, Gorsuch nevertheless wrote that he saw “no constitutional problem” with allowing the discriminatory practice.

• Vehemently opposing women’s health: Gorsuch has opposed women’s health even when doing so flies in the face of clear precedent. He would have upheld a Louisiana law imposing undue requirements on abortion clinics and designed to force those clinics to close, even though an “almost word for word” identical law had been struck down by the Supreme Court on constitutional grounds just a few years earlier.

  Gorsuch also was the deciding vote in enabling the Trump administration to allow employers to deny contraceptive coverage to their employees — a requirement under the Affordable Care Act — on the basis of religious or moral objections, allowing them to impose their beliefs upon their workers. This ruling threatened contraception coverage for an estimated 126,000 women across the country.

In just four short years, Neil Gorsuch has proven himself the ideological extremist that AFJ warned he would be. The fact that he writes these harmful decisions from a stolen Supreme Court seat only makes them all the more insulting. Unfortunately, Gorsuch will continue to damage the rights and protections of millions of Americans for decades to come. Of the hundreds of judges that Donald Trump and Senate Republicans rammed through onto the federal bench, running roughshod over Senate rules and norms, Gorsuch has already been one of the most harmful.

Gorsuch will be on the bench for decades to come. His legacy so far clearly demonstrates why it is critical to begin repairing the immense damage done to our courts, laws, and constitution, which the Biden administration has begun with its first slate of judicial nominees. We must continue this effort by confirming fair-minded judges with a demonstrated commitment to equal justice for all and from demographically and professionally diverse backgrounds — a priority of AFJ’s Building the Bench program — and by considering all available options for Supreme Court and Senate filibuster reform. If the damage Neil Gorsuch has caused in just four years proves one thing, it is that we cannot afford not to prioritize the fight to take back our courts.