This Day in Liberal Judicial Activism—March 15

by Ed Whelan

1933—Ruth Joan Bader is born in Brooklyn, New York. At her Supreme Court confirmation hearing sixty years later, Ruth Bader Ginsburg, defending the invention of a constitutional right to abortion, decries the fact that her mother did not have the legal right to kill her in utero: “The decision whether or not to bear a child is central to a woman’s life, to her well-being and dignity. It is a decision she must make for herself.”

 

2016—No plaintiff? So what?

 

Federal district judge Susan Dlott somehow sees fit to order Ohio’s secretary of state to keep polls open an extra hour in four counties. Dlott issues her order in response to phone calls that the clerk’s office received from unidentified individuals concerned that a serious accident on a bridge would prevent stranded motorists from voting. As the local paper notes, her action “came without a written complaint, a court hearing or a formal presentation of evidence that might show federal election laws were about to be violated.” 

 

On review, a Sixth Circuit will rule that Dlott lacked jurisdiction because no plaintiff had standing. As Judge Jeffrey Sutton succinctly puts it, “There is no plaintiff with standing if there is no plaintiff.”

This Day in Liberal Judicial Activism—March 14

by Ed Whelan

2011—Elevated by President Obama to the Ninth Circuit two months earlier, Mary H. Murguia still has damage to carry out as a federal district judge. In acquitting Elton Simpson of a charge of making a false statement involving international terrorism, Murguia does verbal somersaults to rule that the government did not prove beyond a reasonable doubt that Simpson’s discussions about traveling to Somalia were sufficiently related to international terrorism:

It is true that the Defendant had expressed sympathy and admiration for individuals who “fight” non-Muslims as well as his belief in the establishment of Shariah law, all over the world including in Somalia. What precisely was meant by “fighting” whenever he discussed it, however, was not clear. Neither was what the Defendant meant when he stated he wanted to get to the “battlefield” in Somalia.

Some four years later, in May 2015, Elton Simpson will launch a jihadist attack in Garland, Texas. 

Democrats’ Empty Case Against Gorsuch

by Ed Whelan

This New York Times article on Democrats’ “most prominent planned line of attack” on Supreme Court nominee Neil Gorsuch shows that they have no ammunition.

Here’s how the article sums up the Democrats’ two-pronged attack:

[1] Judge Gorsuch’s rulings have favored the powerful and well connected. [2] And he has done little, they will say, to demonstrate his independence from a president whose combative relationship with the judiciary has already clouded the nominating process. [Bracketed numbers added.]

Let’s consider these two prongs:

1. In the article, Democrats manage to cite a grand total of three cases (out of some three thousand during Gorsuch’s judicial career) in support of their charge:

a. “In one case, Judge Gorsuch argued in a dissent that a company was permitted to fire a truck driver for abandoning his cargo for his own safety in subzero temperatures.”

As I’ve explained in this extended account, the legal question in the case was whether a whistleblower provision that protects a driver when he “refuses to operate a vehicle” because of safety concerns protected a trucker who (as Gorsuch put in in his dissent) “chose instead to operate his vehicle in a manner he thought wise but his employer did not.” As Gorsuch points out, “there’s simply no law anyone has pointed us to giving employees the right to operate their vehicles in ways their employers forbid.” Nor is there any law giving judges free rein to second-guess whether an employer’s decision to fire an employee “was a wise or kind one.”

In short, Gorsuch was dispassionately applying the law.

b. “In another [case], he ruled against a family seeking reimbursement under a federal disabilities law for the cost of sending a child with severe autism to a specialized school.”

I addressed this case in the second half of this post. I’ll note briefly here that Gorsuch’s opinion was unanimous, that it was joined by a very liberal Clinton appointee (Mary Beck Briscoe), and that it steadfastly sought to follow a 1982 Supreme Court precedent that it cited some twenty times. So it’s difficult to see how Democrats could make effective use of this case.

c. “Then there was the professor who lost her job after taking time off to recover from cancer: Judge Gorsuch denied her federal discrimination claim, saying that while the predicament was ‘in no way of her own making,’ it was ‘a problem other forms of social security aim to address.’”

I addressed this case in the first half of this post. Once again, we have a unanimous Gorsuch opinion joined by a very liberal Clinton appointee (Carlos Lucero this time). (The article notes this, but oddly doesn’t do the same for the autism case.)

As Gorsuch explains, in order to establish a claim for discrimination under the Rehabilitation Act, the professor had to show (among other things) that she could “perform the job’s essential functions with a reasonable accommodation for her disability.” But it was undisputed that “she couldn’t work at any point or in any manner for a period spanning more than six months.” So she wasn’t capable of performing the job’s essential functions. 

d. As the article notes, “Judge Gorsuch’s defenders have accused Democrats of cherry-picking.” At his hearing, Gorsuch and Senate Republicans will have plenty of cases to cite to show that Gorsuch neutrally applies the law.

It’s not Gorsuch’s job to be a “friend of the little guy” (as the article’s headline sums up the Democrats’ position) or a friend of the big guy or a friend of any party. So, yes, individuals whose plights win our sympathy will lose their cases when they have weak legal claims. That’s what the rule of law means.

e. Democratic leader Chuck Schumer, of course, doesn’t get it (or at least pretends not to). He complains that Gorsuch “sort of expresses sympathetic words in many of these cases, but then his decision is coldly—he would say pragmatic, we would say coldly—on the side of the big interests.”

No, Senator Schumer, Gorsuch would not “say pragmatic.” Gorsuch soundly rejects the notion that judges have broad discretion to read statutes in furtherance of their own assessments of what is “pragmatic.” Gorsuch would instead say that he was striving to apply the law dispassionately in these cases. And any fair reading of them would support his account.

2. Democrats’ second charge can be readily disposed of. No one who knows Judge Gorsuch or who has examined his record with care has any basis for concern that he will exercise proper judicial independence, whether from President Trump or from any other political considerations. That’s obviously part of the reason why the ABA’s judicial-evaluations committee gave Gorsuch its “strongest affirmative endorsement.”

Democrats, I gather, will try to fault Gorsuch for not speaking out against various things that President Trump has said or done. But the idea that it’s incumbent on, or proper for, a Supreme Court nominee—who is also a sitting federal judge—to inject himself into political disputes is a very odd one.

In short, this second line of attack, like the first, will operate primarily to show that Democrats don’t understand the proper role of a judge.

(By the way, my posts on the Gorsuch nomination are being compiled on this single page, for easy searching.)

This Day in Liberal Judicial Activism—March 13

by Ed Whelan

1963—Ernesto Miranda is arrested in Phoenix on charges of abduction and rape. His interrogation by police yields a written confession. His confession is admitted at trial, and he is convicted.


Three years later, in Miranda v. Arizona, the Supreme Court rules by a 5-4 vote (with the majority opinion by Chief Justice Warren) that a confession made during custodial interrogation will be conclusively deemed involuntary and inadmissible unless police first provide what are now known as the Miranda warnings (or unless other effective safeguards are adopted). It therefore vacates Miranda’s conviction. In dissent, Justice Harlan states that “[o]ne is entitled to feel astonished that the Constitution can be read” to bar admission of a confession “obtained during brief, daytime questioning … and unmarked by any of the traditional indicia of coercion.” Harlan also observes that the “thrust of the [Court’s] new rules” is not to protect against coerced confessions but “ultimately to discourage any confession at all.”


In response to Miranda, Congress in 1968 enacts a law providing that voluntary confessions shall be admissible in evidence in federal prosecutions, whether or not Miranda warnings were given. In 2000, in a striking illustration of the staying power of activist precedents, the Supreme Court rules 7-2 in Dickerson v. United States that Miranda “announced a constitutional rule that Congress may not supersede legislatively,” and it voids the federal statute. As Justice Scalia argues in dissent, the majority in Dickerson does not in fact hold that the use at trial of a voluntary confession, in the absence of Miranda warnings, violates the Constitution, but rather regards Miranda’s rules as merely “prophylactic.” Thus, in voiding the federal law, the majority necessarily rules that it has the “immense and frightening antidemocratic power” “not merely to apply the Constitution, but to expand it, imposing what it regards as useful ‘prophylactic’ restrictions upon Congress and the States.”  

 

2014—By a vote of 5 to 2, the Florida supreme court rules (in Estate of McCall v. United States) that a statutory cap on wrongful-death non-economic damages on medical-malpractice claims violated the equal-rights guarantee under the state constitution. Five justices agree that the plurality opinion misapplies rational-basis review. But three of those justices nonetheless concur in the plurality’s result. That leaves only the two dissenters to embrace the simple reality that the cap “is rationally related to the legitimate state interest of decreasing medical malpractice insurance rates and increasing the affordability and availability of health care in Florida.”

Twitter, Facebook, and More

by Ed Whelan

Just a reminder: If you’re interested, my Twitter handle is @EdWhelanEPPC, and my Facebook page is www.facebook.com/EdWhelanEPPC.

You’re also welcome to join my e-mail distribution list for selected posts of mine from Bench Memos and The Corner as well as my occasional essays on NRO or elsewhere. Just sign up in the “subscribe” box on the top right half of my EPPC bio page. Please note that your e-mail address will not be visible to other folks on the list.  Also, it should be a simple matter for you to remove yourself from the list any time you want.

Leading Members of Supreme Court Bar Endorse Gorsuch

by Ed Whelan

Members of the Supreme Court bar who collectively* “have argued more than 500 cases before the Court” and who “hold a broad range of political, policy, and jurisprudential views” have signed a letter to the Senate Judiciary Committee stating that they “are unified in offering our support of Judge Gorsuch’s nomination.”

Prominent liberal signatories include former Stanford law school dean Kathleen M. Sullivan, American Constitution Society board member David C. Frederick, and Lisa Blatt (head of Arnold & Porter’s Supreme Court practice).

* I will note that the 30 or so signatories include two wannabes—two GOP-affiliated attorneys from the same law firm who are eager to be in the company of leading members of the Supreme Court bar but who between them have argued a grand total of one case before the Court. 

ABA Committee Unanimously Awards Gorsuch Its ‘Strongest Affirmative Endorsement’

by Ed Whelan

The American Bar Association’s Standing Committee on the Federal Judiciary has unanimously awarded Supreme Court nominee Neil Gorsuch its highest rating of “Well Qualified.”

Here’s the Committee’s fuller explanation (emphasis added) of what “Well Qualified” means for a Supreme Court nominee:

To merit the Committee’s rating of “Well Qualified,” a Supreme Court nominee must be a preeminent member of the legal profession, have outstanding legal ability and exceptional breadth of experience, and meet the very highest standards of integrity, professional competence and judicial temperament. The rating of “Well Qualified” is reserved for those found to merit the Committee’s strongest affirmative endorsement.

Diverse Group of Law School Classmates Support Gorsuch

by Ed Whelan

Dozens of Neil Gorsuch’s Harvard Law School classmates—“Democrats, Republicans, Libertarians and independents; progressives, conservatives and moderates; religious and non-observant; married, single and divorced; men and women; straight and gay”—have signed a powerful letter setting forth why they support his Supreme Court nomination.

Among the signatories is prominent Democrat Norm Eisen, who was special counsel for ethics in President Obama’s White House (as well as ambassador to the Czech Republic).  

Excerpts from the letter:

[W]e attended law school with Judge Neil Gorsuch—a man we’ve known for more than a quarter century—and we unanimously believe Neil possesses the exemplary character, outstanding intellect, steady temperament, humility and open-mindedness to be an excellent addition to the United States Supreme Court….

Judge Neil Gorsuch is a person for all seasons. For Republicans, Neil personifies a disinterested philosophy that respects judicial modesty combined with compassionate appreciation of the lives impacted by his decisions. For Democrats, he is a reasonable, qualified, intelligent person who will give each case fair and impartial consideration on its merits with sensitivity to our nation’s history, values, aspirations and constitutional traditions. For all Americans, he is a person of integrity who respects the rule of law and will ensure that it applies equally to all.

Victory in Guam

by Roger Clegg

Yesterday a federal trial court in Guam ruled unconstitutional a proposed plebiscite in which only Chamorros (the native group indigenous to Guam) would have been allowed to vote. That’s the right decision, since such racial discrimination is banned by the 14th and 15th Amendments. Congratulations and kudos to Christian Adams, the Center for Individual Rights, and the law firm Gibson Dunn, all of whom had a hand in this important victory.

By the way, you might have thought that the U.S. Department of Justice would have played some role in vindicating the voting rights at stake here, but you would have been wrong: The Obama administration stayed conspicuously on the sidelines. Here’s hoping that if there is an appeal from or outright resistance to this week’s court ruling — the governor of Guam has made some George Wallacesque pronouncements — the Trump administration will get in the game.

Prominent Progressive Lawyer: No Reason to Vote No on Gorsuch

by Ed Whelan

In this Washington Post op-ed, prominent appellate lawyer David C. Frederick, “a longtime supporter of Democratic candidates and progressive causes” and a member of the board of directors of the left-wing American Constitution Society, explains to his fellow Democrats why “there is no principled reason to vote no” on the nomination of Neil Gorsuch to the Supreme Court.

Frederick praises Gorsuch (his “former law partner and longtime friend”) as “brilliant, diligent, open-minded and thoughtful.” Frederick also refutes the wildly distorted attacks that various groups on the Left have launched (and that I’ve critiqued in various posts collected here). An excerpt:

As a judge on the U.S. Court of Appeals for the 10th Circuit, Gorsuch has not been the reflexive, hard-edged conservative that many depict him to be. He has ruled for plaintiffs and for defendants; for those accused of crimes as well as for law enforcement; for those who entered the country illegally; and for those harmed by environmental damage.

Anyone who sees Gorsuch as automatically pro-corporation should talk to the officers at Rockwell International and Dow Chemical, against whom he reinstated a $920 million jury verdict for environmental contamination at the Rocky Flats nuclear facility. Executives at U.S. Tobacco Company might also be wringing their hands at the moment, given that Gorsuch, as an attorney, helped to attain one of the largest antitrust verdicts in history against the company.

This Day in Liberal Judicial Activism—March 9

by Ed Whelan

1964—Does the New York Times lack First Amendment rights because it is owned and operated by a corporation? The idiotic suggestion embedded in that question will confound New York Times editors decades later, but it properly plays no role in the Supreme Court’s decision in New York Times v. Sullivan.

The Court unanimously overturns a libel judgment of $500,000 in punitive damages entered in favor of Montgomery (Alabama) city commissioner L.B. Sullivan against the New York Times Company and four black ministers whose names were attached to a full-page advertisement that protested against mistreatment of blacks in the South. But illustrating that racist facts generate bad law, the Court doesn’t limit itself to the solid ground that there was zero evidence that the allegedly libelous statements could plausibly have been understood to refer to Sullivan.

Instead, relying heavily on a 1908 Kansas supreme court case, Justice Brennan’s majority opinion invents the rule that the First Amendment “prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with ‘actual malice’—that is, with knowledge that it was false or with reckless disregard of whether it was false or not.”

Three justices would go even further—by recognizing an “unconditional right to say what one pleases about public affairs” (Black, joined by Douglas) and “an absolute, unconditional privilege to criticize official conduct despite the harm which may flow from excesses and abuses” (Goldberg, joined by Douglas).

1983—In Community for Creative Non-Violence v. Watt, the en banc D.C. Circuit rules, by a 6-5 vote, that the First Amendment bars the National Park Service from applying its anti-camping regulations to demonstrators who, as part of their protests on behalf of the poor and the homeless, sought permission to sleep in Lafayette Park. The six justices in the majority divide among four separate opinions, leading Judge Malcolm Wilkey in dissent to observe that “it seems apparent that [our six colleagues] are quite sure that these appellants should be allowed to sleep in Lafayette Park, but they have had great difficulty in figuring out why.”

Judge Wilkey, in the principal dissent (for all five dissenters), opines that even on the assumption that sleeping qualifies as speech for First Amendment purposes, the anti-camping regulations may be applied. Judge Antonin Scalia (joined by Judges MacKinnon and Bork) separately dissents “flatly to deny that sleeping is or can ever be speech for First Amendment purposes.” Scalia observes: “That this should seem a bold assertion is a commentary upon how far judicial and scholarly discussion of this basic constitutional guarantee has strayed from common and common-sense understanding.”

One year later, in Clark v. Community for Creative Non-Violence, the Supreme Court will reverse the D.C. Circuit by a 7-2 vote (with—surprise!—Justices Brennan and Marshall in dissent).             

This Day in Liberal Judicial Activism—March 8

by Ed Whelan

1948—In McCollum v. Board of Education, the Supreme Court applies the “wall of separation” myth that it adopted the previous year (see This Day entry for Feb. 10, 1947) and strikes down a released-time program in which religious teachers, employed by their own religious groups, could provide religious instruction on school grounds at designated times to those students whose parents consented. As law professor Philip Hamburger explains in Separation of Church and State, the McCollum case made clear that the Supreme Court’s misconstruction of the Establishment Clause “would go far beyond the [constitutionally unfounded] Protestant version of separation of church and state” and impose a secular version.
 

This Day in Liberal Judicial Activism—March 7

by Ed Whelan

2013—Less than three weeks before oral argument in cases challenging the federal Defense of Marriage Act and California’s marriage laws, Justice Anthony Kennedy uses the dedication ceremony of a new court library (the “Anthony M. Kennedy Library and Learning Center”) to distribute a reading list that he has developed for young people.

Entitled “Understanding Freedom’s Heritage: How to Keep and Defend Liberty,” Kennedy’s list runs through many great selections—Pericles’ Funeral Oration, the Magna Carta, Lincoln’s Gettysburg Address and Second Inaugural, Martin Luther King Jr.’s “I Have a Dream”—only to culminate in Kennedy’s own opinion in Lawrence v. Texas (holding that there is a constitutional right to homosexual sodomy).

Heritage Foundation Event on Judge Gorsuch

by Ed Whelan

Tomorrow (Tuesday) at noon, I’ll be taking part in a panel discussion on Judge Gorsuch at the Heritage Foundation. My fellow panelists are Michael Carvin and C. Boyden Gray.

I’ve been asked to discuss Gorsuch’s rulings on religious liberty, and my co-panelists will address his rulings on free speech and administrative law.

The event will be live-streamed.

Supreme Court Vacates Fourth Circuit Transgender Ruling

by Ed Whelan

In an important procedural victory for the Gloucester County School Board, the Supreme Court today issued an order (without any recorded dissent) that vacates the Fourth Circuit’s (unsound) judgment in G.G. v. Gloucester County School Board and remands the case to the Fourth Circuit “for further consideration in light of the guidance document issued by the Department of Education and Department of Justice on February 22, 2017.” That guidance document is available here.

What this means is that the Fourth Circuit’s badly confused ruling has been wiped out: It is no longer binding precedent in the Fourth Circuit, nor should it be cited by any other court.

Let’s hope that the Fourth Circuit panel does a better job on remand (or that G.G.’s imminent graduation moots the case).

This day in liberal judicial activism—March 6

by Ed Whelan

1857—Chief Justice Taney’s ruling in Dred Scott marks the Supreme Court’s first use of the modern liberal judicial activist’s favorite tool—“substantive due process”—to invalidate a statute. In striking down the Missouri Compromise of 1820, which prohibited slavery in the northern portion of the Louisiana Territories, Taney nakedly asserts: “[A]n act of Congress which deprives a citizen of the United States of his liberty and property, merely because he came himself or brought his property into a particular Territory of the United States, and who had committed no offense against the laws, could hardly be dignified with the name of due process of law.” 

The dissenters in Dred Scott invoke, and properly apply, the originalist principles that liberal judicial activists regard as abhorrent. As Justice Curtis declares rhetorically in exposing Taney’s deviation from originalist principles: “[I]f a prohibition of slavery in a Territory in 1820 violated this principle of [due process], the ordinance of 1787 also violated it.” Further:  “[W]hen a strict interpretation of the Constitution, according to the fixed rules which govern the interpretation of laws, is abandoned, and the theoretical opinions of individuals are allowed to control its meaning, we have no longer a Constitution; we are under the government of individual men, who for the time being have power to declare what the Constitution is, according to their own views of what it ought to mean.”

1996—On the anniversary of Dred Scott, an en banc panel of the Ninth Circuit, in Compassion in Dying v. State of Washington, rules that a Washington statute prohibiting physician-assisted suicide violates substantive due process. The majority opinion, by notorious liberal activist Stephen Reinhardt, garners votes from eight of the eleven panel members.

A year later, the Supreme Court unanimously reverses the Ninth Circuit (in an opinion styled Washington v. Glucksberg). But any assurance or clarity that the unanimous judgment might seem to provide is undercut by five separate opinions (by Stevens, O’Connor, Souter, Ginsburg, and Breyer) signaling a willingness to concoct at some future point some sort of constitutional right to physician-assisted suicide.

2003—Senate Democrats use the anniversary of Dred Scott to punish a Hispanic judicial nominee who has escaped from the liberal plantation. Initiating the unprecedented use of the filibuster as a partisan weapon to block forever an up-or-down vote on a judicial nominee, 44 Democrats prevent a Senate floor vote on President Bush’s nomination of the superbly qualified Miguel Estrada to the D.C. Circuit. This is the first of seven unsuccessful cloture votes before Estrada ultimately withdraws his candidacy.

This Day in Liberal Judicial Activism—March 5

by Ed Whelan

1970—A three-judge district court, consisting of Seventh Circuit judge Otto Kerner Jr. and district judges John W. Reynolds and Myron L. Gordon, rules that a Wisconsin law, dating from 1858, that prohibits abortion before quickening violates the Ninth Amendment.

Never mind that the Ninth Amendment sets forth a mere rule of construction—“The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people”—and cannot plausibly be read as the font of any rights.

2012—Despite affirming the district court’s entry of a permanent injunction barring police from imposing content-based restrictions on roadside demonstrations by anti-abortion protesters, a Fourth Circuit panel (in Lefemine v. Wideman) rules that the plaintiff protesters are somehow not “prevailing parties” eligible for an award of attorney’s fees.

On a petition for review, the Supreme Court will summarily reverse the Fourth Circuit panel in a unanimous per curiam opinion.

Setting the Record Straight on Gorsuch and Disabilities

by Carrie Severino

A major wire service recently published a story claiming that “Neil Gorsuch has embraced a bare-bones standard of education for disabled children.”  It’s unfortunate to see its uncritical adoption of liberal talking points about Gorsuch, particularly when they are so easily refuted.  For starters, the generation is not based on a series of cases, but a single point sample, and seriously misrepresents that one case.  What’s more, the story overlooks the many instances in which Judge Gorsuch upheld the rights of the disabled which thoroughly undermine its conclusion.

The story’s most sensational claim relies on the fact that “Gorsuch wrote an opinion that reversed a lower court ruling, which would have forced a Colorado school to pay an alternative school to educate an autistic boy.” The case in question is Thompson School District v. Luke, for which Gorsuch wrote the unanimous opinion — joined in full by Judge Mary Briscoe, a liberal Clinton appointee — that applied longstanding case law from the Supreme Court and the Tenth Circuit. The parents of a disabled student sought to have a public school district in Colorado pay for their son’s private school education even though he was making progress in public schools and even though the school district was willing to make additional individualized efforts to mirror some of the potential benefits of the private school. Indeed, as the panel’s opinion notes, the parents in this case decided to put their student in private school even while the school district was still working to do more to meet the student’s needs.

As the panel’s unanimous opinion explains, in passing the Individuals with Disabilities in Education Act (IDEA), Congress sought to ensure that disabled students are able to make progress in public schools using individualized education plans. In this particular case, every decision-maker had already held that the individual student was making progress in school – the only question was whether that progress was enough to constitute sufficient educational benefit under the IDEA as passed by Congress and interpreted by the Supreme Court.

As any responsible appeals judge would do, Judge Gorsuch referred to Supreme Court precedent. In Board of Education v. Rowley, the Court held that in passing the IDEA, Congress did not require the provision of a sign language interpreter for a deaf student who was able to make progress with a hearing aid. A unanimous Tenth Circuit panel applied the Rowley test in 1998 to deny a transfer to a different school where a student was making adequate progress as his current school.  Gorsuch’s unanimous opinion in Thompson School District simply applied the binding Supreme Court and Tenth Circuit precedents to hold that, where a student is making progress in public school, the public school district is not required to fund a private school education. Indeed, the Tenth Circuit had previously

The story also presents an incomplete picture by failing to note the many cases in which Judge Gorsuch has protected the rights of disabled students in IDEA cases. In Jefferson County School District R-1 v. Elizabeth E. ex rel. Roxanne B., he wrote separately in support of a ruling that required a school district to fund a disabled child’s treatment at a residential facility of her parents’ choosing. In M.S. ex rel. J.S. v. Utah School for Deaf & Blind, he joined a panel opinion that ensured the IDEA claims of a blind and deaf student would receive full judicial review, reversing the district court’s decision to the contrary.

Judge Gorsuch has also sought to increase the scope of representation afforded disabled students in IDEA proceedings. In a 2016 article, he criticized states that restrict representation in IDEA proceedings to attorneys, including laws that that prevent parents from hiring non-profit groups of their choosing. Judge Gorsuch even argued in favor of allowing broad representation for disabled students by “nonlawyers who have special training or knowledge ‘with respect to the problems of children with disabilities’” in order to ensure that disabled students get the best, broadest advocacy available to them.

Finally, it is worth noting that Judge Gorsuch frequently rules in favor of disabled employees, not just students, in their claims of discrimination. In Lowe v. Independent School Dist. No. 1 of Logan County, Judge Gorsuch voted to allow a disabled teacher to proceed to trial on her claim of disability discrimination, reversing the district court. In George v. Astrue, Judge Gorsuch held that an administrative law judge failed to adequately consider an injured individual’s claim that he was unable to work due to a mental impairment. And in two separate cases (Energy West Mining Company v. OliverEnergy West Mining Company v. Johnson), Judge Gorsuch affirmed findings by the government that disabled miners were entitled to black lung benefits from their employer.

In short, the caricature of Judge Gorsuch as a Dickensian villain couldn’t be further from the truth. Not only does this story misrepresent the Tenth Circuit’s ruling in Thompson, but it also omits a long history in which the Supreme Court nominee has ruled in favor of defending the rights of the disabled. ​

Twitter, Facebook, and More

by Ed Whelan

Just a reminder: If you’re interested, my Twitter handle is @EdWhelanEPPC, and my Facebook page is www.facebook.com/EdWhelanEPPC.

You’re also welcome to join my e-mail distribution list for selected posts of mine from Bench Memos and The Corner as well as my occasional essays on NRO or elsewhere. Just sign up in the “subscribe” box on the top right half of my EPPC bio page. Please note that your e-mail address will not be visible to other folks on the list.  Also, it should be a simple matter for you to remove yourself from the list any time you want.

Neil Gorsuch and Antitrust Law

by Daniel Mogin & Jonathan Rubin

As Michelle Obama said, “When they go low, we go high.” Many parties have voiced their concerns about Neil Gorsuch’s Supreme Court nomination for numerous reasons, but law professor Zephyr Teachout’s recent op-ed in the Washington Post, accusing him of a “preference for concentrated wealth and power” and consistent friendliness toward “big business and monopolies at the expense of competition and open markets,” goes low and is not supported by his antitrust record.

Impressed by Ed Whelan’s recent two-part response (Part 1 and Part 2) to Teachout’s claims, we have developed our own commentary with the following intent: In the antitrust arena, Judge Gorsuch, like any nominee, should be judged according to his record, not political dogma.

As American as apple pie, the antitrust/pro-competition laws have usually enjoyed broad bipartisan support. Their purpose is to encourage free competition and open markets. Because we love competition, only bad market conduct that excludes competitors, stifles innovation, limits output or choices, or artificially raises prices is prohibited. We don’t punish companies who grow big because of superior products, prices, or management. For better or worse, antitrust long-ago abandoned the idea that “big is always bad” and determined to examine bigness case-by-case based on scrutiny of market facts.

Professor Teachout alleges that Judge Gorsuch “willfully ignores the realities of how markets and economic power work, . . . has repeatedly blessed actions by big firms to exploit their dominant position,” and as a justice would “subvert our democracy once and for all.” She also says that he “gives monopolists virtual carte blanche to perpetuate their dominance through unfair means, regardless of the consequences for consumers, competitors and citizens.” While provocative, this critique cannot be based on Judge Gorsuch’s actual judicial opinions in antitrust cases or his accomplishments as a practicing lawyer.

Both of Judge Gorsuch’s antitrust opinions Teachout criticizes involved refusals to deal with a rival, which has always been one of the hardest questions in antitrust law. According to the Supreme Court, the general rule is that a business has “no antitrust duty to deal with [] rivals at all.” Although some 30 years ago the Court held that the right to refuse to deal is not unqualified where the defendant terminates a profitable relationship without any economic justification other than an anticompetitive one, it also acknowledged that same finding to be at or near the outer boundaries of antitrust law and it has never repeated the result. Both cases cited by Professor Teachout were competitor cases, where caution is the rule so as not to protect competitors at the expense of the competitive process, not cases where market participants complained that they had been victimized by price-fixing or monopolization. And in both cases, a three-judge panel unanimously affirmed verdicts first entered by a lower court. Judge Gorsuch was not writing on a blank slate; he was required to defer to the lower court’s findings on the evidence unless there was clear error and was not free to ignore Supreme Court precedent, whether or not he agreed with it.

Looking at Novell v. Microsoft: Windows dominated the operating system market and Microsoft also competed in the applications markets. This duality led to a complicated relationship with other applications makers such as Novell, which made WordPerfect, a competing application to Microsoft’s Word. Novell wanted access to Windows’ application-programming interfaces (APIs) and namespace extensions (NSEs) so it could “hook” WordPerfect to the Windows’ OS. Microsoft first promised access but later refused. After an eight-week trial, the jury couldn’t reach a unanimous verdict. The trial judge — not Judge Gorsuch — then decided that Microsoft’s conduct toward Novell did not violate the antitrust laws.

The trial court found that Microsoft’s refusal to grant NSE access resulted from its desire to maximize its own profits, not to harm competition. Thus, Judge Gorsuch’s affirmance based on that evidence can hardly be said to ignore the market facts or to grant monopolists carte blanche. The decision does not rely on formulaic application of Chicago School doctrine as Professor Teachout suggests. (Trust us, it is almost impossible to be a strict Chicagoan while at the same time citing to Einer Elhauge.) The ruling was consistent with existing precedent — blame the Supreme Court for that, not Judge Gorsuch. Judge Gorsuch also began his opinion by expressly acknowledging that Microsoft had been “liable for a rich diversity of antitrust misdeeds in the 1990s,” which hardly fits the charge that he gives monopolists carte blanche.

Judge Gorsuch’s opinion in Four Corners Nephrology v. Mercy Medical is Professor Teachout’s second example of antitrust bias. FCN affirmed a lower court’s decision that a hospital with an in-house nephrologist had no duty to share its facilities with a competitor who had previously declined the position. While the reasoning of Judge Gorsuch’s opinion is very similar to that in Novell, he again rigorously analyzed the market facts in the record. It should also be noted that while physician-privileges-related antitrust cases are not infrequently filed, they are, for a variety of reasons, infrequently successful. This case involved a non-profit hospital in Durango, Colorado (pop. 17,000) and a single physician. Regardless of the outcome, to cite it as evidence of a “preference for concentrated wealth and power” or consistent friendliness toward “big business and monopolies” is baseless.

Matters not cited by Professor Teachout also refute the charge of antitrust bias. Judge Gorsuch’s opinion in Kay Electric Cooperative v. City of Newkirk reversed a trial court’s dismissal of an antitrust case brought by an electric cooperative against a rival municipality that also supplied electricity and refused to grant immunity to the city. As an antitrust trial lawyer, Gorsuch was part of a team that obtained a verdict against U.S. Tobacco Company for monopolization, which at the time was the largest antitrust jury verdict in the history of private enforcement.

All in all, while one may dispute the circumstances of his nomination or his positions on various issues, or may prefer a different view of antitrust law than the last 35 years of Supreme Court rulings, it’s simply a bridge too far to say that Judge Gorsuch’s record shows that he is a strict Chicago Schooler who willfully ignores market realities and has repeatedly backed monopolies against consumers. Professor Teachout went low to make a political point, a point that we might generally be sympathetic to, but which is not borne out by Judge Gorsuch’s antitrust record.

— Daniel Mogin and Jonathan Rubin practice antitrust law in San Diego and Washington, D.C., respectively. Find them at moginrubin.com.