United States: You May Now Be Seated: Neil Gorsuch Prepares For Spot On The High Court

Article by Jessica Perry, Lisa Lupion and Michael Disotell

After the Supreme Court sat with an empty seat for more than one year, and following a hard-fought nominations process which saw the failed nomination of Judge Merrick Garland and Republican lawmakers resorting to the "nuclear option," the Senate confirmed Neil Gorsuch of the Tenth Circuit to be the next Supreme Court Justice. His first day on the job was Monday, April 17th. But for those who are not familiar with Judge Gorsuch, the question remains: what kind of Justice will he be?

Although Supreme Court Justices can—and sometimes famously do—change their judicial philosophies once they've joined the Court, commentators often look to a candidate's judicial record as a way to divine how he or she may rule in future cases. During Justice Gorsuch's eleven year tenure on the Tenth Circuit, he penned 212 opinions and numerous dissents, ultimately emerging as a strict adherent to the principles of textualism and originalism. In many cases, his judicial tendencies were displayed in his employment law decisions.

Gorsuch has shown reluctance in applying Chevron deference to agency action. In TransAm Trucking v. Administrative Review Board, 833 F.3d 1206 (10th Cir. 2016), dissented from the majority's ruling that a company violated the whistleblower provisions of the Surface Transportation Assistance Act ("STAA") when it fired an employee who abandoned cargo after being pressured to work in unsafe conditions. In his dissent, Gorsuch criticized the majority for applying Chevron deference to a loose DOL interpretation of the STAA, especially considering the agency never argued Chevron deference applied to its interpretation. Gorsuch's seeming disinclination to defer to agency interpretation could prove determinative if the Supreme Court decides whether the anti-retaliation provisions in the Dodd-Frank Wall Street Reform and Consumer Protection Act also apply to whistleblowers who claim retaliation after reporting internally, or whether those protections only apply once an individual reports directly to the SEC. Currently, the Second and Ninth Circuits have given deference to the SEC's position that internal reporting is protected, while the Fifth Circuit has rejected the position.

In the discrimination context, Gorsuch issued several rulings in cases that were matters of first impression before the Tenth Circuit. In particular, he concluded in Almond v. Unified School Dist. No. 501, 665 F.3d 1174, 1175 (10th Cir. 2011) that the Lilly Ledbetter Fair Pay Act only applies to discrimination in compensation claims, not in cases "alleging discrimination in hiring, firing, demotions, transfers, or the like." He also wrote the Tenth Circuit's opinion concluding that plaintiffs may not maintain an employment discrimination action under Title II of the ADA. See Elwell v. Okla. ex rel. Bd. of Regents of the Univ. of Okla., 693 F.3d 1303, 1305 (10th Cir. 2012). During his tenure on the Tenth Circuit, Gorsuch has shown an open disdain for the McDonnell Douglas burden-shifting framework. For instance, in Paup v. Gear Prods., 327 Fed. Appx. 100 (10th Cir. 2009) he accused the framework of "improperly diverting attention away from the real question posed by the ADEA — whether age discrimination actually took place — and substituting in its stead a proxy that only imperfectly tracks that inquiry." Most recently in Walton v. Powell, Gorsuch opined, "in the narrow remaining class of (summary judgment, circumstantial-proof) cases, it may be that McDonnell Douglas is properly used only when the plaintiff alleges a 'single' unlawful motive — and not 'mixed motives' — lurking behind an adverse employment decision. A potentially crippling limitation given that Title VII's statutory language doesn't ever require plaintiffs to establish more than mixed motives to prevail. Indeed, given so many complications and qualifications like these, more than a few keen legal minds have questioned whether the McDonnell Douglas game is worth the candle even in the Title VII context." Although Gorsuch has not discussed how he would modify the McDonnell Douglas test, in his new role as Supreme Court justice, he might seek an opportunity to craft an alternative burden structure for discrimination claims.

Further, Gorsuch has shown a willingness to indulge trade secret holders a full range of remedies to enforce their rights. In one case interpreting the Utah Uniform Trade Secrets Act, Gorsuch rejected the notion a company needs to show an employee derived a commercial gain through misappropriated trade secrets in order to state a claim; instead, disclosure to a competitor was enough to show trade secrets theft regardless of the former employee's motives. See StorageCraft Technology Corp. v. Kirby, 744 F.3d 1183 (10th Circuit 2014). In another Gorsuch opinion, he rejected the notion that trade secrets could be preempted by patent law, stating, "traditional trade secret claims can peacefully coexist with patent law." Russo v. Ballard Medical Products, 550 F.3d 1004 (10th Circuit 2008). While these cases fell under state trade secret laws, it remains to be seen whether Gorsuch would look to apply similar analysis to claims involving the federal Defend Trade Secrets Act ("DTSA"). Indeed, the Supreme Court has not heard a case yet involving the DTSA, but issues have been percolating in the lower courts since the DTSA's enactment.

Finally, Gorsuch's prior opinions indicate he will likely continue the Supreme Court's trend finding in favor of pre-emption under the Federal Arbitration Act ("FAA"). In one opinion reversing and remanding a trial court's decision denying a defendant's motion to compel arbitration, Gorsuch wrote, "Everyone knows the Federal Arbitration Act favors arbitrations . . . Parties should not have to endure years of waiting and exhaust legions of photocopiers in discovery and motions practice merely to learn where their dispute will be heard. The Act requires courts process the venue question quickly so the parties can get on with the merits of their dispute in the right forum." See Howard v. Ferrellgas Partners LLP, 748 F.3d 975 (10th Cir. 2014). Similarly, Gorsuch dissented in Ragab v. Howard, 841 F.3d 1134 (10th Cir. 2016), where the majority of the three-judge panel upheld a district court's denial of a motion to compel arbitration after it determined conflicting arbitration provisions in multiple agreements showed no meeting of the minds between the parties. Gorsuch would have compelled arbitration, explaining "the federal policy favoring arbitration embodied in the FAA and armed with preemptive force" trumped a New Jersey doctrine that prohibited arbitration when multiple contracts contained conflicting terms. Gorsuch may have an opportunity to directly apply this reasoning soon, especially considering the Supreme Court has agreed to hear several consolidated cases concerning the legality of class action waivers in arbitration clauses.

In February of last year, we noted, "With Justice Scalia's passing, the Court lost a commanding and influential voice on a wide range of issues; employment law was no exception. Only time will tell how the post-Scalia Court will interpret or modify the legacy he left." Assuming Justice Gorsuch retains his judicial approach, it will re-create the 5-4 majority for the Court's conservative wing and put an end to many of the 4-4 deadlocks that have occurred since Justice Scalia's passing. If that is the case, it appears that Scalia's legacy will remain intact for years to come as Justice Gorsuch fills his vacancy on the Court.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.