Judge Neil Gorsuch, President Donald Trump’s nominee to succeed the late Justice Antonin Scalia on the Supreme Court, has fared well under Supreme Court scrutiny.
“To my recollection, no opinion I have authored has been reversed by a reviewing court or affirmed with significant criticism,” he wrote in a questionnaire submitted to the Senate Judiciary Committee this weekend.
Of the 240 published opinions he has written since joining the 10th U.S. Circuit Court of Appeals in 2006, at least eight have been reviewed by the Supreme Court. Seven were upheld by the justices, four of them unanimously. His sole defeat at the high court came before the cert stage — that is, his opinion was vacated without briefing, oral arguments, or an opinion from the Court. Instead, he was asked to review his ruling after the justices wrote an opinion in another case that provided further guidance on the issue in question. This process, called a “grant, vacate, and remand” or “GVR” is extremely common.
Two of Gorsuch’s opinions were upheld on 5-4 votes. The first, Dolan v. U.S., concerned whether federal courts could order convicts to pay restitution beyond the time prescribed by the Mandatory Victims Restitution Act. The decision affirming Gorsuch’s ruling was written by Justice Stephen Breyer, and joined by Justices Clarence Thomas, Ruth Bader Ginsburg, Samuel Alito, and Sonia Sotomayor. The second opinion, Burwell v. Hobby Lobby, divided the justices along ideological lines.
Two opinions he joined were overturned by the high court. One was Direct Marketing Association v. Brohl, a case concerning whether federal courts had jurisdiction to hear a challenge to a state tax law. The second case concerned a sentencing issue. Gorsuch did not write the opinion in either case.
He has fared well along other metrics as well. Of the 240 published opinions he has written, only 14 drew dissents from his colleagues, according to an analysis by Jeff Harris of Kirkland & Ellis. Gorsuch himself has dissented only 35 times in his career as a federal judge.
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