President Donald Trump’s executive order temporarily suspending the immigration of refugees and citizens from seven Muslim-majority countries is now pending before the 9th Circuit Court of Appeals. The Supreme Court is likely to ultimately resolve the constitutionality of this directive, though it will probably do so before Trump Supreme Court nominee Neil Gorsuch is confirmed as an associate justice.
Nonetheless, the legal challenge to Trump’s travel ban is indicative of the business-related cases Gorsuch is likely to see if he is ultimately admitted to the court. While much has been written about the executive order’s political and legal ramifications, it also will have a strong effect on American businesses, given its direction that even individuals with green cards and valid visas are not allowed to enter—or even re-enter—the country. Many businesses fear losing key employees as a result.
Gorsuch’s record as a judge on the 10th Circuit Court of Appeals since 2006 shows him to be a staunch conservative, who overall favors business interests in his decisions. Though he’s unlikely to evaluate the travel ban case, Gorsuch will have many other opportunities to deal with challenges to the Trump administration’s policies affecting businesses, such as those concerning environmental regulations, labor regulations, and civil rights rules.
Gorsuch has recently ruled in favor of enforcing arbitration clauses, even when it meant that injured people could not sue in court. This is quite similar to late Justice Antonin Scalia’s tendency to strongly support enforcing arbitration clauses, a position repeatedly urged by businesses and their advocates. All recent Supreme Court decisions about arbitration were closely split by 5-4 margins. Had a Democratic appointee such as Merrick Garland replaced Scalia, many thought that the court would reconsider its pro-arbitration rulings since 2010. With Judge Gorsuch replacing Scalia, this is not going to happen.
In employment discrimination cases, Gorsuch has consistently favored employers over employees. In the last few years, he has ruled in favor of the right of employers, based on their religious beliefs, to refuse to provide insurance with contraceptive coverage for female employees. In his Gutierrez-Brizuela v. Lynch ruling last year, Gorsuch urged overturning a Supreme Court decision that gives deference to administrative agencies in interpreting their statutory authority. Changing this would make it easier for courts to strike down agency actions protecting consumers and regulating the environment.
Gorsuch will evaluate cases in an almost identical manner to Scalia, who he is replacing on the bench. In fact, Gorsuch follows the same “originalist” method for interpreting the Constitution and federal statutes, holding that the meaning of a constitutional provision is fixed at the time that it was enacted and can be changed only through the amendment process. Like Scalia, Gorsuch believes that a statute should be interpreted based on its “plain language.”
The key question is what Senate Democrats will do about Gorsuch. Do they filibuster his appointment or confirm a justice they know will be very conservative and business-friendly? Senate Democrats are outraged that Republicans “stole” this seat through the unprecedented refusal to hold hearings or a vote on Garland’s nomination prior to the 2016 presidential election. The Democrats know that if they filibuster, Republicans can invoke the “nuclear option,” changing the Senate’s rules by a simple majority vote to eliminate the filibuster. In fact, Trump has urged Senate leaders to do exactly this if Gorsuch’s nomination is stalled.
Gorsuch is only 49 years old. If he remains on the court into his advanced years, he could have a profound effect on business, and all areas of federal constitutional and statutory law, for a very long time to come.
Erwin Chemerinsky is dean, distinguished professor, and Raymond Pryke professor of First Amendment law at the University of California, Irvine School of Law.
