ATTORNEYS: H. Adam Prussin and Jessica N. Dell
POMERANTZ MONITOR May/June 2017
Quick quiz: who wrote this?
the politicization of the judiciary undermines the only real asset it has — its independence. Judges come to be seen as politicians and their confirmations become just another avenue of political warfare. Respect for the role of judges and the legitimacy of the judiciary branch as a whole diminishes. The judiciary’s diminishing claim to neutrality and independence is exemplified by a recent, historic shift in the Senate’s confirmation process. Where trial-court and appeals-court nominees were once routinely confirmed on voice vote, they are now routinely subjected to ideological litmus tests, filibusters, and vicious interest-group attacks.
Our readers may be surprised to learn that the answer is none other than Neil Gorsuch, President Trump’s appointee to the Supreme Court. After this article appeared in 2005, he was appointed to the Tenth Circuit Court of Appeals and, a few weeks ago, was confirmed to fill the Supreme Court vacancy created by Justice Scalia’s passing in February 2016.
What better example of confirmation through “political warfare” could there possibly have been? Republicans had scuttled President Obama’s nomination of MerrickGarland, refusing to grant Judge Garland evena hearing in the Senate, in the hope that a Republican would win the presidency a year later and appoint a more conservative justice. Once Trump was elected, his new administration immediately began the push for Judge Gorsuch’s confirmation, to restore a 5-4 majority on the court for Republican appointees. When Senate Republican leaders couldn’t rally the requisite 60votes to confirm him, they changed the rules to allow Gorsuch (and all future nominees) confirmation by a simple majority. And a simple majority was all that he got, as both parties voted almost strictly along party lines to deliver the most politicallypolarized judicial confirmation in history.
Ironically, Gorsuch’s 2005 article put all the blame on liberals for the politicization of the Supreme Court. It was they, he said, who supposedly relied too heavily on unelected judges to advance their policy objectives. The passing of time, however, hasshown that Republicans can play that game at least as well as Democrats. Garland’s totally partisan rebuff, followed by Gorsuch’s totally partisan confirmation, come on the heels of a series of conservative crusades in the courts including, most notably, their efforts to allow corporate cash to flow unfettered into elections, and multiple attempts to strike down or cripple the Affordable Care Act, and to create a whole new free-fire zone of unlimited gun rights.
Although Gorsuch’s appointment raises a host of concerns, those of us who represent investor rights are especially troubled. In 2005, when he was a member of the Bush Justice Department, he wrote another article, which appeared in Andrews Securities Litigation, where he made plain his hostility to shareholder class actions. The first section of his article is entitled “The Incentive To Bring and the Pressure To Settle Meritless Suits”; the second is headed “The Incentive To Reward Class Counsel but Not Necessarily Class Members”; followed by a series of suggestions for choking off these “meritless” securities cases, most of which come from (or found their way into) the standard defense bar playbook. Prominent among them are his proposals for tightening “loss causation” pleading requirements and for slashing fees awarded to counsel for shareholders. Justice Gorsuch is not going to be a friend to investors. Sadly, the first case he heard after joining the Court was a securities case brought by CALPers.
There are other grounds for concern about Justice Gorsuch’s legal views. Some of them include his belief that corporations are people entitled to constitutional protections, including the rights to buy elections, avoid government regulation and oversight, and to impose management’s religious convictions on their employees. His views prompted Emily Bazelon of the New York Times to write that “Gorsuch embraces a judicial philosophy that would do nothing less than undermine the structure of modern government — including the rules that keep our water clean, regulate the financial markets andprotect workers and consumers.”
As a judge, Gorsuch’s most notable decision might have been his joinder in most of the Tenth Circuit’s en banc ruling in Hobby Lobby Stores, Inc. v. Sebelius, which famously held that the religious beliefs of the owners of a closely held corporation could be imputed to the company and justify its refusal to comply with the law. At issue were the religious beliefs of David Green, the evangelical Christian CEO of the chain. Green claimed that Hobby Lobby was exempt from providing coverage for the full range of contraceptives for his employees under the Affordable Care Act because of his own religious convictions. Gorsuch agreed that those religious beliefs could be considered to be the beliefs of his corporation, and that the Religious Freedom Restoration Act, which protects the religious freedom of all “persons,” therefore applied. Confronted on the topic of Hobby Lobby after his nomination, and asked how he could read the Religious Freedom Restoration Act to include corporations, Gorsuch said he relied on existing case law that support the idea that corporations could be considered as having the same rights as individuals. “Congress could change that if it thinks otherwise,” Gorsuch said. “… and it was affirmed by the Supreme Court.” The Hobby Lobby decision was indeed upheld by the Supreme Court.
If you are a fan of the rights of corporations to impose their will on individuals, while being immune from the claims of their own shareholders, then you will love Justice Gorsuch.