PFAW’s Feeble Attacks on Gorsuch

by Ed Whelan

At the website of—euphemism alert!—People for the American Way, Elliot Mincberg attacks Supreme Court nominee Neil Gorsuch as “dangerous” and “far-right.” Let’s take a look at each of Mincberg’s charges and the feeble evidence he tries to muster in support of them:

1. Mincberg alleges:

As a judge, [Gorsuch] has consistently ruled against workers and in favor of big corporations. For example, he argued in dissent that the court did not even protect  the in-house counsel of a state fire marshal from sex discrimination.

Let’s start with the two opinions Mincberg complains about.

Gorsuch did indeed dissent (in Compass Environmental, Inc. v. Occupational Safety & Health Review Comm’n) from a panel ruling upholding a fine imposed against a company for allegedly failing to adequately train a worker who was electrocuted. He did so, as he explains, on the very narrow ground that the Secretary of Labor failed to present any evidence to satisfy her burden of showing that industry norms would have required more training than the worker received. As he points out, the administrative-law judge in the matter “dismissed the citation against [the employer] for exactly this reason.”

The second opinion that Mincberg objects to (in Weeks v. Kansas) was a short unanimous opinion that involved a straightforward application of circuit precedent. The case did not involve sex discrimination but rather an employer’s alleged unlawful retaliation against an in-house lawyer for her advice concerning two other employees’ claims of unlawful discrimination. Under Tenth Circuit precedent, an in-house lawyer does not engage in “protected opposition to discrimination” when she merely provides legal advice to the employer. Gorsuch’s opinion affirmed the district-court ruling of Judge Carlos Murguia, a Clinton appointee.

So Mincberg’s two examples do not remotely support any broader proposition that Gorsuch “has consistently ruled against workers and in favor of big corporations.” One could as easily cite cases in which he has ruled for workers and against big corporations and (as Weeks involved) government entities. See,  e.g.,  Strickland v. United Parcel Service (reinstating Family and Medical Leave Act retaliation claim and Title VII discrimination claim);  Orr v. City of Albuquerque (reversing grant of summary judgment to city on pregnancy-discrimination claim by female police officers). In short, the only real constant is that Gorsuch “has consistently ruled” as he has understood the law and facts to require.

2. Mincberg alleges that Gorsuch “has harmed women’s reproductive rights through joining opinions that both  non-profits  can refuse to provide contraceptive coverage to women under the ACA.” What Gorsuch did was correctly rule that the federal Religious Freedom Restoration Act affords religious-liberty protections to closely held for-profit corporations and religious nonprofits. As the Supreme Court made clear in its ruling in Burwell v. Hobby Lobby, there are plenty of other ways that the Obama administration could provide coverage of contraceptives (including those with potential abortifacient effects) without dragooning those who have sincere religious objections. So Mincberg’s real complaint is with RFRA or with the Obama administration.

3. Mincberg complains that Gorsuch “argued in dissent that the Governor of Utah should be able to defund Planned Parenthood  there as a result of false [sic] videos purporting [sic] to show other Planned Parenthood affiliates negotiating the sale of fetal tissue.” What Mincberg neglects is that Gorsuch clearly got the narrow legal issue right.

In Planned Parenthood Ass’n of Utah v. Herbert, Gorsuch (joined by three colleagues) dissented from the Tenth Circuit’s denial of rehearing en banc of a divided panel decision that granted Planned Parenthood’s Utah affiliate (PPAU) a preliminary injunction against Utah governor Gary Herbert’s directive to state agencies “to cease acting as an intermediary for pass-through federal funds” to PPAU. Herbert issued his directive following the Center for Medical Progress’s release of videos depicting various Planned Parenthood affiliates’ ugly involvement in harvesting body parts. The Tenth Circuit panel reversed the district court’s denial of preliminary injunctive relief.

The pivotal legal issue on which “everyone agreed,” as Gorsuch explains, was whether Herbert “discontinued funding because of [PPAU’s] affiliation with those accused of illegally selling fetal tissue—as he said he did” (in which case “the parties agreed that no constitutional violation had taken place”) or whether he instead “discontinued funding for a different and secret reason—in retaliation for the group’s advocacy of lawful abortions (in which case “both sides accepted that a constitutional violation had occurred”).

Gorsuch powerfully argues that the panel, in reversing the district court, departed from circuit practice on the standard of review and the burden of proof: “Rather than afford the district court’s factual finding about the Governor’s intentions the deference it was due, the panel offered its own independent assessment of the record.” Further, the panel “relaxed PPAU’s burden of proof and even seemed to reverse it.” Although Herbert has long opposed abortion and has held office since 2009, he “had taken no action against PPAU until shortly after the release of the videos in 2015” and had in fact “repeatedly granted or extended funding to PPAU for numerous programs since taking office.” So it was bizarre that the panel majority would “dismiss the Governor’s evidence suggesting an obvious and temporally proximate potential cause [of the Governor’s directive] in favor of PPAU’s evidence suggesting a temporally remote potential cause that was itself contradicted by intervening evidence.”

4. Mincberg argues that Gorsuch, back when he was in private practice, “tried to restrict or eliminate one of the most effective legal tools against corporate securities fraud, class actions against corporations.”

What Mincberg is apparently objecting to is that Gorsuch wrote an op-ed about, and an amicus brief on behalf of the Chamber of Commerce in, the Supreme Court case of Dura Pharmaceuticals v. Broudo. Set aside that Mincberg is faulting Gorsuch for representing his client. Gorsuch’s amicus brief highlighted the economic toll of meritless class actions and asked the Supreme Court to rule that plaintiffs under the securities laws had to allege and prove the traditional elements of causation and loss. In a unanimous opinion by Justice Breyer, the Court adopted the position that Gorsuch and others (including the SEC) advocated. So Mincberg is exposing himself as the extremist here.

5. Mincberg charges that Gorsuch “has gone even further to the right than elimination  of the so-called Chevron doctrine, under which courts defer to administrative agency interpretations of ambiguous statutes, which has been extremely important on environmental, job safety, and other issues.”

But as I’ve explained, the Chevron rule of judicial deference to administrative agencies has no inherent ideological valence. How it operates in practice depends on who is running the agencies.

Indeed, Justice Stevens wrote the opinion for a unanimous Court in Chevron, and Justice Scalia, contrary to what Mincberg suggests, was one of the most ardent advocates of Chevron (though he might have been reconsidering his position in recent years). Academic supporters and critics transcend the usual ideological lines. See, e.g., Jack Beermann, “End the Failed Chevron Experiment Now: How Chevron Has Failed and Why It Can and Should Be Overruled,” 42 Connecticut Law Review (2010).

Is Mincberg really sure that he’d prefer that the Trump administration, rather than the courts, determine the meaning of ambiguous laws on environmental protection and job safety? In any event, determining whether Chevron deference is valid requires engaging Gorsuch’s separation-of-powers arguments against it.

* * *

In sum, Mincberg’s bill of particulars against Gorsuch is a joke.

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