Neil Gorsuch and Privacy
On February 2, 2017, President Trump nominated Judge Neil M. Gorsuch to replace the late Justice Antonin Scalia on the U.S. Supreme Court. Judge Gorsuch, who sits on the U.S. Court of Appeals for the Tenth Circuit, has often been compared to Justice Scalia in his legal views and writing style.
Judge Gorsuch was born in Colorado and raised in both Denver and Washington, D.C. In 1988 he graduated from Columbia University, where he was inducted into Phi Beta Kappa, wrote for the Columbia Daily Spectator, and co-founded The Fed, a then-conservative student newspaper. He received a Truman Scholarship to attend Harvard Law School, where he he served as an editor for the Harvard Journal of Law & Public Policy and graduated cum laude in 1991. Gorsuch was awarded a Marshall Scholarship and attended graduate school at University College Oxford, where he would later earn his Ph.D. in legal philosophy in 2004.
From 1991-92, Gorsuch clerked for Judge David B. Sentelle on the U.S. Court of Appeals for the D.C. Circuit, and from 1993-94 he clerked for U.S. Supreme Court Justices Byron White and Anthony Kennedy. After completing his clerkships, Judge Gorsuch joined the D.C.-based boutique law firm of Kellogg, Hansen, Todd, Figel & Frederick PLLC, where he became a partner in 1998. In 2005, he left the firm to serve as Principal Deputy to Associate U.S. Attorney General Robert McCallum.
On May 10, 2006, President Bush nominated Judge Gorsuch to the U.S. Court of Appeals for the Tenth Circuit. He was confirmed by a unanimous voice vote of the Senate on July 20, 2006. Judge Gorsuch has participated in hundreds of cases in over a decade on the bench.
The Nominee's Positions
If appointed to the Supreme Court, Judge Gorsuch will wield considerable influence over of wide range of privacy, First Amendment, open government, and consumer protection issues. Judge Gorsuch's views on some of these subjects are well documented, while in other areas his positions are largely unknown and call for further scrutiny.
The Role of Congress and the Courts in Safeguarding Privacy
The Supreme Court has decided many important cases concerning privacy and new technologies. Recent decisions include Riley v. California (concerning the search of a cell phone incident to arrest) and United States v. Jones (concerning the attachment of a GPS tracking device to a vehicle). Many of the justices have spoken to the institutional roles that Congress and the Courts play in addressing these challenges to basic freedoms. Justice Kagan emphasized in a public speech that privacy "will be one of the most important issues before the Court in the decades to come." Justice Alito, in his concurring opinion in Jones, highlighted the important role that Congress plays in regulating "that complex subject" of wiretapping, noting that "concern about new intrusions on privacy may spur the enactment of legislation to protect against these intrusions." And Justice O'Connor wrote in a widely cited concurring opinion:
In recent years, we have witnessed the advent of powerful, computer-based recordkeeping systems that facilitate arrests in ways that have never before been possible. The police, of course, are entitled to enjoy the substantial advantages this technology confers. They may not, however, rely on it blindly. With the benefits of more efficient law enforcement mechanisms comes the burden of corresponding constitutional responsibilities.
Law enforcement today is presented with opportunities to use "stingray" devices, collect and test DNA samples for personal characteristics, mine social media platforms for information, and access camera and recording devices remotely. The public should feel confident that Judge Gorsuch understands the role that these technologies and law enforcement techniques play in individual lives, and respects the need to govern law enforcement use of them wisely.
Given the rapid pace with which law enforcement technologies are developing, it is critical for the courts, as well as Congress, to safeguard fundamental rights. It is therefore important to ascertain Judge Gorsuch's views on the role of the Courts and of Congress in addressing the challenges that new technology presents.
The Fourth Amendment
Following in the tradition of Justice Scalia, Judge Gorsuch has authored several Fourth Amendment decisions that protect individuals against intrusive searches. Still, it is important to fully explore Judge Gorsuch's views on several aspects of Fourth Amendment doctrine.
Search, Seizure, and New Technologies
In United States v. Ackerman, Judge Gorsuch authored an opinion holding that the National Center for Missing and Exploited Children (NCMEC) had violated the defendant's Fourth Amendment rights by conducting a warrantless search of his email. AOL, the defendant's email provider, had an automated filter which could detect images previously identified as child pornography. When that system flagged one of the defendant's emails, AOL forward the message to NCMEC. The center opened the message and established that the attachments did, in fact, contain child pornography.
Writing for the court, Judge Gorsuch determined the NCMEC, which receives funding from the government and has special powers under federal law, was a state actor. Thus, it had violated the Fourth Amendment by opening the defendant's email.
Judge Gorsuch dissented in United States v. Carloss. In that case, the court determined that—despite the presence of "no trespassing" signs—police officers acted reasonably when they approached and knocked on the door of a defendant's house. Judge Gorsuch concluding that a reasonable officer would not have believed that they were welcome on the property and that police should have obtained a warrant. Both opinions suggest that Judge Gorsuch favors a robust interpretation of the Fourth Amendment, reflecting the intent of the framers, as did Justice Scalia.
In United States v. Denson, Judge Gorsuch, writing for the majority, found that the government's use of a radar device to determine whether someone was inside a building constituted a warrantless search under the Fourth Amendment. But in 2012, Judge Gorsuch declined to exclude evidence from a GPS device that had been placed on the defendant's car without a warrant. Because police had conducted their investigation prior to the Supreme Court's ruling that use of a GPS tracker constitutes a search, the Tenth Circuit determined that officers had acted in good faith and that the GPS evidence was admissible. That outcome was contrary to the unanimous holding of the Supreme Court in United States v. Jones, suggesting perhaps that Judge Gorsuch was behind the curve of the evolving doctrine of the Fourth Amendment.
The Third-Party Doctrine
It is critical to learn more about Judge Gorsuch's views on Fourth Amendment's "third-party" doctrine, which has diminished the privacy protections for individuals whose personal information is held by third parties like banks, Internet Service Providers, and medical companies.
In Kerns v. Bader, Judge Gorsuch, writing for the majority, determined that an officer who had requested the plaintiff's medical records from a VA hospital had not violated the Fourth Amendment. Judge Gorsuch applied the third-party doctrine, which dictates that "the Fourth Amendment does not prohibit the obtaining of information revealed to a third party and conveyed by [the third party] to Government authorities, even if the information revealed [to the third party] on the assumption that it will be used only for a limited purpose and the confidence placed in the third party will not be betrayed." This doctrine currently applies to financial information and, as Judge Gorsuch noted, "at least some courts have indicated the same analysis applies to personal medical records entrusted by patients to hospitals or care providers."
However, the third-party doctrine is "ill suited to the digital age, in which people reveal a great deal of information about themselves to third parties in the course of carrying out mundane tasks." As Justice Sotomayor has explained, even deeply private information disclosed to third parties—such as "a list of every Web site . . . visited in the last week, or month, or year"—will lack constitutional protection "unless our Fourth Amendment jurisprudence ceases to treat secrecy as a prerequisite for privacy." This is an ongoing concern for many Americans and an issue that increasingly arises in federal courts.
The Constitutional Right to Anonymity
The Constitution protects the right to anonymity—the right not to disclose one's identity as a condition of exercising First Amendment freedoms. This right of anonymity is all the more important in the connected age: "As the means by which we can be contacted increase, so too do the means by which we can be retaliated against."
The risks to anonymity arise also from new policing techniques, such as police body-worn cameras that may improve oversight but also raise concerns about the use of techniques for mass surveillance. For example, the constitutional right of the people to peacefully assemble and petition the government for redress of grievances is immediately implicated by police officers with body-mounted cameras moving through crowds and using facial recognition techniques to identify individuals. Such issues are likely to be before the courts in the next few years and will require justices and judges who fully comprehend the risks to constitutional freedoms of such techniques.
In 2010, Judge Gorsuch joined a decision by the Tenth Circuit limiting the First Amendment right to anonymous speech. The Utah legislature had enacted a statute requiring released sex offenders to disclose all "Internet identifiers and the addresses [used] for routing or self-identification in Internet communications" along with the passwords for those identifiers. An offender challenged the statute on the grounds that the law unconstitutionally chilled his online speech. Yet the court, including Judge Gorsuch, held that the law did "not unnecessarily interfere with his First Amendment freedom to speak anonymously."
Judge Gorsuch also sided with the government in two other cases concerning the compelled disclosure of identity. In 2014, the nominee wrote an opinion in a religious freedom lawsuit brought by an inmate. The plaintiff, a Muslim man who had legally changed his name for religious reasons while incarcerated, alleged that the prison officials were violating his Free Exercise rights by requiring him to list his former name when sending and receiving mail. The court rejected the plaintiff's challenge, concluding that the prison's policy was "neutral toward religion and generally applicable."
In 2015, Judge Gorsuch joined the Tenth Circuit's decision in an air traveler's lawsuit against police. An Albuquerque police officer had arrested the plaintiff after he declined to stop filming at a security checkpoint and refused the officer's demand to show identification. But the court held that the officer was entitled to qualified immunity from the plaintiff's Fourth Amendment claim, as "a reasonable officer could have believed that an investigative stop for disorderly conduct at an airport security checkpoint required the production of some physical proof of identity." The court also declined to address whether there is "First Amendment protection for creating audio and visual recordings of law enforcement officers in public places"—a right recognized by numerous other circuits.
Judge Gorsuch's position on the right to anonymity could have significant influence from the bench of the Supreme Court, which is already considering a case about digital privacy rights under the First Amendment.
FOIA and Government Transparency
Government transparency, and in particular the Freedom of Information Act, are critical to ensuring accountability and meaningful oversight. Public disclosure of government records and proceedings ensures that the nation is fully informed about what the federal government is doing. Sunshine Week was recently observed to honor importance of transparency, and last year EPIC celebrated the 50th anniversary of the FOIA and the enactment of amendments to strengthen our open government laws.
Judge Gorsuch has not authored any opinions concerning FOIA. He has joined just one Tenth Circuit opinion interpreting the statute, in which the court briefly explained that "FOIA and the Privacy Act govern document requests of federal agencies, not state agencies."
Judge Gorsuch's record is similarly limited on judicial transparency. In 2016, the nominee authored an opinion concerning civilian access to court martial proceedings. Though the plaintiffs had previously attended court martial proceedings at Fort Carson, Colorado, the base commander barred the plaintiffs from attending future hearings. The plaintiffs contended that this order interfered with their "right to observe court martial proceedings in violation of the First Amendment," an argument which Judge Gorsuch and the Tenth Circuit rejected.
Beyond these two cases, Judge Gorsuch has said little about government transparency. In particular, he has expressed no views about the excessive withholding of "working law" under FOIA's deliberative process exemption, the overuse of FOIA's law enforcement exemption to withhold records not connected to any specific investigation, or the problem of over-classification. Because these practices threaten to make FOIA "more a withholding statute than a disclosure statute," it is essential to learn Judge Gorsuch's views on these and other open government issues.
Article III Standing
Article III of the Constitution grants the federal courts judicial power over "cases" and "controversies." Over time, the Supreme Court has developed the doctrine of standing to ensure that federal court jurisdiction is limited to "actual" cases or controversies. The chief requirement of standing doctrine is that a plaintiff must have suffered an "injury-in-fact"—that is, an "invasion of a legally protected interest" which is (1) "concrete and particularized" and (2) "actual or imminent, not conjectural or hypothetical."
In recent years, some defendants—particularly companies in privacy and consumer protection cases—have sought to manipulate standing doctrine by insisting that plaintiffs must show consequential harm above and beyond their legal injuries. That pattern has continued since the Supreme Court's recent standing decision in Spokeo, Inc. v. Robins, which several lower courts have misread as endorsing a consequential harm theory.
This corruption of standing doctrine is deeply concerning, as it prevents plaintiffs from vindicating rights created by Congress, state legislatures, and the common law. These decisions especially implicate the Acts of Congress that seek to protect Americans from the growing problems of data breach, identity theft, and financial fraud. Also, when a company violates consumers' legal rights by failing to prevent a data breach of their personal information, it is often impossible for those consumers to know whether or how their data was misused by a third party. Demanding that these consumers allege some additional harm—beyond the violation of an Act of Congress—to invoke federal court jurisdiction thus bars them from seeking relief, even though they have suffered a legal injury.
Judge Gorsuch has not taken part in any standing cases since the Spokeo ruling, but his prior standing decisions suggest a relatively broad view of injury-in-fact. In 2010, he wrote that an employee of a medical practice searched by state authorities had sufficiently alleged injury-in-fact by complaining that "records from inside his personal desk were searched and seized" in violation of his "reasonable expectation of privacy in his office." Later that year, Judge Gorsuch wrote that the "out-of-pocket cost to a business of obeying a new rule of government" suffices for injury-in-fact, "whether or not there may be a pecuniary loss associated with the new rule." And in 2015, the nominee wrote that a coal company had properly alleged injury-in-fact necessary for a dormant Commerce Clause challenge where (1) the company sold coal in Colorado, and (2) the challenged state law reduced coal demand and limited the portion of the market that the company could serve.
Judge Gorsuch has signed on to several other notable standing decisions. In 2014, he joined the Tenth Circuit in holding that "[f]or a procedural injury, the requirements for Article III standing are somewhat relaxed, or at least conceptually expanded. . . . It suffices that the procedures are designed to protect some threatened concrete interest of [the person] that is the ultimate basis of standing." He also twice joined the court in holding that plaintiffs could establish injury-in-fact solely by alleging that their First Amendment rights had been violated. These cases suggest that Judge Gorsuch is willing to infer injury-in-fact even in the absence of additional harm.
Still, it is unclear whether Judge Gorsuch believes that legal injury is sufficient to confer standing in all cases, or whether he would graft a consequential harm requirement onto the doctrine in some instances. It is crucial to determine Judge Gorsuch's views in this area of law, which has enormous implications for privacy, consumer protection, and access to the federal courts.
The Chevron Doctrine
Judge Gorsuch's track record concerning Chevron deference raises question about whether he would seek to modify the doctrine if appointed to the Court.
In Gutierrez-Brizuela v. Lynch, the nominee wrote a concurring opinion stating that Chevron "permit[s] executive bureaucracies to swallow huge amounts of core judicial and legislative power and concentrate federal power in a way that seems more than a little difficult to square with the Constitution of the framers' design. Maybe the time has come to face the behemoth." Judge Gorsuch further worried that "Chevron invests the power to decide the meaning of the law, and to do so with legislative policy goals in mind, in the very entity charged with enforcing the law. Under its terms, an administrative agency may set and revise policy (legislative), override adverse judicial determinations (judicial), and exercise enforcement discretion (executive)."
The Chevron doctrine is one of the most significant pillars of administrative law, and changes to it could have a major impact on judicial review, consumer protection, and public safety. For example, as the Internet of Things (IoT) continues to grow and more connected devices are incorporated into everyday life, the resulting risks to consumers are also increasing. EPIC has urged the Federal Trade Commission to regulate the IoT and safeguard the privacy and security of consumers and businesses. If a court is asked to review a privacy-enhancing FTC action on the IoT, the vitality of the Chevron doctrine will be enormously consequential: will the court defer to the agency's expertise in interpreting its Section 5 authority, or will the court substitute its own reading of the statute?
Somewhat different questions arise around drones and privacy. Despite a mandate from Congress to do so, the Federal Aviation Administration has failed to establish privacy rules for commercial drones. EPIC has petitioned the D.C. Circuit to hold that failure unlawful, given the significant risks to privacy and civil liberties that drones pose. Were the Chevron doctrine revised or eliminated, the court would have a freer hand to interpret the FAA's obligations under the FAA Modernization and Reform Act of 2012. In an earlier case, EPIC correctly argued that the TSA had failed to comply with the Administrative Procedures Act when it failed to give the pubic the opportunity to comment on the agency's decision to airport deploy body scanners, which allowed agency officials to view travelers as if they were stripped naked.
EPIC is far from alone in raising questions about Judge Gorsuch's views on Chevron deference. Given the implications of the Chevron doctrine for privacy, consumer protection, and public safety, Judge Gorsuch's views on this subject demand further exploration.
DNA and Health Privacy
In United States v. Deiter, Judge Gorsuch joined the Tenth Circuit in holding that a trial judge had not abused his discretion by refusing a criminal defendant's request to compel DNA samples from two arresting officers. The court noted that "the collection of DNA samples from the officers implicates important privacy interests."
There is an ongoing concern in the criminal justice system that new forensic techniques, such as DNA matching, are used almost exclusively to establish guilt and not made equally available for exculpatory purposes. DNA data collection has expanded dramatically over the past decade. As of January 2017, the National DNA Index (NDIS) contains over 12,732,925 "offender" profiles, 2,608,768 arrestee profiles and 752,508 forensic profiles. The profiles are heavily skewed toward low-income and minority communities. In the coming years, the Supreme Court may be asked to rule on whether law enforcement can use government or private DNA databases (like Ancestry.com) to conduct "familial searches." These searches look at DNA databases "not for the person who left the crime-scene sample, but rather for a relative of that individual." The Court may also be asked to rule on whether genetic privacy protects employees from having to choose between paying a penalty or sharing their genetic information with their employers.
Judge Gorsuch's early views on medical privacy are encouraging. As a student at Columbia University, he was interviewed by the Columbia Daily Spectator during his bid for a student council seat on whether "AIDS patients [should] be required to report their illness to the University Health Service." Judge Gorsuch replied, "It would be, to my mind, a violation of AIDS patients' rights and privileges of privacy to demand that they report their illness."
However, EPIC is troubled by Judge Gorsuch's more recent conclusion in Kerns v. Bader that a police demand for medical records from a hospital did not violate the Fourth Amendment. Federal law—including HIPAA—has not protected the right to health privacy, causing the majority of the public to mistrust health technology and physicians and to withhold information from their doctors, putting their health and life at risk. In 2002, HIPAA regulations eliminated a patient's longstanding ethical and legal right of consent, legalizing corporate use and sales of personal data and the global health data broker industry. With the public increasingly aware that their health data is not private, it is critical to press Judge Gorsuch on his views concerning the future of health privacy.
The Electronic Communications Privacy Act
Privacy protections for personal communications remain a key concern for many. According to a recent survey from the Pew Research Center, "A majority of Americans (64%) have personally experienced a major data breach, and relatively large shares of the public lack trust in key institutions—especially the federal government and social media sites —to protect their personal information."
Under the Electronic Communications Privacy Act, the government may demand stored communications and transaction records from third-party service providers simply by offering "specific and articulable facts showing that there are reasonable grounds to believe that the ... records or other information sought are relevant and material to an ongoing criminal investigation." This is a markedly lower standard than the showing of probable cause required for a warrant.
On two occasions, Judge Gorsuch has rejected the argument that a government violation of ECPA warrants the exclusion of the resulting evidence—the same remedy that would ordinarily be available for a Fourth Amendment violation. "Subscriber information provided to an Internet service provider is not protected by the Fourth Amendment's privacy expectation," Judge Gorsuch wrote in United States v. Swenson. "Neither do violations of the Electronic Communications Act warrant exclusion of evidence." It is unclear whether Judge Gorsuch believes that ECPA offers sufficient privacy protections for the emails and other stored communications of U.S. citizens, particularly if criminal defendants are to lack a remedy for unlawful uses of the statute.
The Nominee's Hearing
The following excerpts are from the Senate Judiciary Committee hearing on Judge Gorsuch’s nomination, held March 20-23, 2017. Full video and rough transcripts can be found at:
- Gorsuch Confirmation Hearing, Day 1
- Gorsuch Confirmation Hearing, Day 2, Part 1
- Gorsuch Confirmation Hearing, Day 2, Part 2
- Gorsuch Confirmation Hearing, Day 3, Part
- Gorsuch Confirmation Hearing, Day 3, Part 2
- Gorsuch Confirmation Hearing, Day 4, Part 1
- Gorsuch Confirmation Hearing, Day 4, Part 2
On the Constitutional Right to Privacy
Judge Gorsuch was asked about his views on the constitutional right to privacy:
Sen. Chris Coons (D-DE): Do you believe the Constitution contains a right to privacy?
Judge Gorsuch: Yes, Senator, I do. Privacy is in a variety of places in the Constitution. The first and most obvious place—back to the Bill of Rights—is the Fourth Amendment: the right to be free from unreasonable searches and seizures in your homes, papers, and effects. That’s privacy, right? The Third Amendment, which I alluded to but didn’t want to reveal—
Sen. Coons: Quartering of troops.
Judge Gorsuch: No quartering of troops. Stay out of my house with your troops. Happily we don’t litigate that much. The First Amendment, right? The right to free expression which we’ve been talking about and the freedom of religious belief, expression—that requires a place of privacy. And the Fourteenth Amendment, Senator. Over now about eighty or ninety years, the Supreme Court of the United States has held that the “liberty” prong of the Due Process Clause protects privacy in a variety of ways having to do with child rearing and family decisions, going back to Meyers [sic] which involved parents who wished to have the freedom to teach their children German at a time when it was unpopular in this country. And Pierce, the right of parents to send their children to a parochial school if they wish. So, Senator, yes: the Constitution definitely contains privacy rights.
Judge Gorsuch was also asked specifically about Griswold v. Connecticut:
Sen. Chuck Grassley (R-IA): What about Griswold, which was decided a few years before Roe—the case where the Court found a constitutional right to privacy. Can you tell me your views on Griswold?
Judge Gorsuch: Senator, it’s a precedent that’s now fifty years old. Griswold involved the right of married couples to use contraceptive devices in the privacy of their own home. And it’s fifty years old, the reliance interests are obvious, it’s been repeatedly reaffirmed—all very important factors again in analyzing precedent.
On the Fourth Amendment and New Technology
Judge Gorsuch was asked about whether the meaning of the Constitution must adapt to human affairs:
Judge Gorsuch: What I would say is that the Constitution doesn’t change; the world around us changes. And we have to understand the Constitution and apply it in light of our current circumstances. That’s what we’re trying to do as judges. So for example, one of my favorite cases in this area is Jones, right? The Supreme Court of the United is faced with a GPS tracking device attached by the police to a car. Is that a search? And the Court goes back and looks: at the time of the founding, what qualified as a search? And found that that would have qualified as a trespass to chattels in a search by the government. And says that would have been offensive 200 years ago—that sort of thing—it has to be offensive now. The Constitution is no less protective of people’s liberties now than 200 years ago.
Judge Gorsuch was also asked about his commitment to originalism:
Sen. Cruz (R-TX): Do you share the view of the Democratic attacks that originalism is somehow a quaint and outdated notion of reading the Constitution for what it says?
Judge Gorsuch: Senator, I want to say a few things about that, and I appreciate the opportunity. The first is that sometimes we in our discourse today—our civil discourse—use labels as a way to not engage with other people. To treat and divide us and them. And as a judge, I just don’t think that’s a very fair or appropriate or useful way to engage in discourse. So I’m worried about using labels in ways that are sometimes an excuse for engagement with the ideas, sometimes pejoratively. The truth is, I don’t think there’s a judge alive who doesn’t want to know—about whatever legal text he or she is charged with interpreting—something about its original meaning as enacted. I don’t think this is an ideological thing. I look at decisions like Jones, which we’ve talked about. Or decisions like Kyllo, the thermal imaging of a home—is that a search under the Fourth Amendment? The Supreme Court goes back and looks at the original history and says it’s equivalent to Peeping Toms, which of course would be a search under the Fourth Amendment. The Constitution is no less protective of people’s liberties today than it was 200 years ago.
Finally, Judge Gorsuch was asked specifically about the application of the Constitution to new technologies:
Sen. Cruz (R-TX): Would you share your thoughts about how the constitution intersects with modern technology, how a 200-plus-year-old document could possibly be applied in a world of Internet and technology and changing reality?
Judge Gorsuch: Well, it’s just these discussions we’ve been having, right? You go back and you look to the evidence of what it was understood at the time to protect. Of course Madison didn’t know about thermal imaging or GPS tracking devices. Or DNA. Or Email. And no one is looking to take us back to the horse-and-buggy days. Or quill pens. Or to turn back the clock on anything. The point is to apply the law in a way that allows us to be able to say as judges: it’s not what we wish, it’s what the law was understood to mean. It has a fixed meaning, as Madison said.
On the First Amendment Right to Anonymous Speech
Judge Gorsuch was asked about the First Amendment right to anonymous speech during a discussion of Citizens United v. FEC:
Judge Gorsuch: What I’m prepared to say is I recognize that as a matter of First Amendment interests, the Supreme Court has validated the proposition that disclosure serves important functions in a democracy. At the same time, the Supreme Court’s also acknowledged that disclosure functions can sometimes themselves have unintended consequences, as with the NAACP case, which I know you’re familiar with—where you can use disclosure as a weapon to try and silence people. And we have a long history in this—
Sen. Whitehouse (D-RI): Hardly the case with respect to the dark money operation that is funding this campaign in your favor.
Judge Gorsuch: Senator, I’m not prejudging any case. What I’m suggesting to you is that there are interests here in this area of First Amendment disclosure—that’s what we’re talking about in my mind generally, okay?—that are competing. On the one hand, in order for informed voters and citizens to be able to make decisions, the Supreme Court in Buckley has validated the interest that this body has in regulating disclosure.
Sen. Whitehouse: And in theory, so did the court in Citizens United.
Judge Gorsuch: And in theory in Citizens United. At the same time, the courts also recognized in NAACP, for example, that disclosure can be used as a weapon to silence voices. And we have a long history of anonymous speech serving valuable functions in this country. Like Publius.
The Nominee's Writings
Judge Gorsuch has authored hundreds of decisions, concurrences, and dissents while serving on the Tenth Circuit, many of which are detailed above. He has written relatively few scholarly works, all of which concern assisted suicide:
- Neil M. Gorsuch, The Future of Assisted Suicide and Euthanasia, (2009)
- Hon. Neil M. Gorsuch, J.D., D.Phil., A Reply to Raymond Tallis on the Legalization of Assisted Suicide and Euthanasia, 28 J. Legal Med. 327 (2007)
- Neil M. Gorsuch, The Legalization of Assisted Suicide and the Law of Unintended Consequences: A Review of the Dutch and Oregon Experiments and Leading Utilitarian Arguments for Legal Change, 2004 Wis. L. Rev. 1347, 1348 (2004)
- Neil M. Gorsuch, The Right to Assisted Suicide and Euthanasia, 23 Harv. J.L. & Pub. Pol'y 599 (2000)
Judge Gorsuch has also delivered a handful of public lectures:
- Neil M. Gorsuch, Of Lions and Bears, Judges and Legislators, and the Legacy of Justice Scalia, 66 Case W. Res. L. Rev. 905 (2016)
- Neil M. Gorsuch, Law's Irony, 37 Harv. J.L. & Pub. Pol'y 743 (2014)
In a 2002 op-ed for UPI, Judge Gorsuch lamented that "[t]he judicial confirmation process today bears no resemblance" to the confirmations of 50 years ago. "Today, there are too many who are concerned less with promoting the best public servants and more with enforcing litmus tests and locating unknown 'stealth candidates' who are perceived as likely to advance favored political causes once on the bench. . . . Whatever else might be said about the process today, excellence plainly is no longer the dispositive virtue." Judge Gorsuch even expressed frustration at how Chief Judge Merrick Garland—one of the "finest lawyers of [his] generation"—was "mistreated" during his lengthy nomination process for the D.C. Circuit.
The Nomination Process
- President Trump's Nominee for the Supreme Court Neil M. Gorsuch, The White House (Jan. 31, 2017)
- The White House, President Trump Announces Supreme Court of the United States Nominee, YouTube (Jan. 31, 2017)
- Transcript: Neil Gorsuch’s full remarks after accepting the U.S. Supreme Court nomination, Denver Post (Jan. 31, 2017)
- PN55 — Neil M. Gorsuch — Supreme Court of the United States, Congress.gov (2017)
- Videos and Transcripts of Nomination Hearing (Mar. 20-23, 2017):
On March 20, 2017, EPIC submitted a letter to the Senate Judiciary Committee detailing Judge Gorsuch's record on privacy, First Amendment, open government, and consumer protection issues. The letter also lays out EPIC's concerns regarding judicial independence, the role of Congress and the Courts in safeguarding privacy, and the U.S. Senate's handling of Chief Judge Merrick Garland's nomination to the Supreme Court.
- Letter from EPIC to Chairman Chuck Grassley & Ranking Member Dianne Feinstein, S. Judiciary Committee (March 20, 2017)
Reports of Other Interest Groups
- Alliance for Justice, Supreme Court Nominee: Judge Neil Gorsuch (Feb. 16, 2017)
- Ilya Shapiro, Cato Institute, Neil Gorsuch Will Make a Fine Justice (Feb. 2, 2017)
- Reporters Committee for the Freedom of Press, Special report on Supreme Court nominee Neil Gorsuch (Feb. 2, 2017)
- ACLU, Report of the American Civil Liberties Union on the Nomination of Judge Neil M. Gorsuch to be Associate Justice of the United States Supreme Court (Feb. 1, 2017)
- Heritage Foundation, A Closer Look at Neil Gorsuch, an Excellent Choice for the Supreme Court (Feb. 1, 2017)
- Eric J. Segall, Make Neil Gorsuch actually answer questions in his Supreme Court confirmation hearings, L.A. Times (Mar. 13, 2017)
- Yuvraj Joshi, Opinion: Gorsuch May Be Supreme Court’s Most Religiously Motivated Justice, NBC News (Mar. 13, 2017)
- Zephyr Teachout, Neil Gorsuch sides with big business, big donors and big bosses, Wash. Post (Feb. 21, 2017)
- Rita Colorito, Neil Gorsuch's position on birth control and other 'freebies', Chicago Tribune (Feb. 16, 2017)
- Neal K. Katyal, Why Liberals Should Back Neil Gorsuch, N.Y. Times (Jan. 31, 2017)
- Editorial Board, Neil Gorsuch, the Nominee for a Stolen Seat, N.Y. Times (Jan. 31, 2017)
- David Leonhardt, Why Democrats Should Oppose Neil Gorsuch, N.Y. Times (Jan. 31, 2017)
- Ilya Somin, Supreme Court pick Neil Gorsuch has troubling views on federalism and judicial review, N.Y. Daily News (Jan. 31, 2017)
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