Confirmation hearings this week for President Trump’s pick for the Supreme Court, federal judge Neil Gorsuch, are sure to inflame partisan passion in Washington. To American consumers, however, the issue isn’t strictly red and blue.
But there is much more to Gorsuch than that, including his “originalist” legal philosophy. That view of the law — one that was also espoused by the late Justice Antonin Scalia, whose seat Gorsuch hopes to fill — calls for judges to interpret laws as originally written, without regard to how their interpretation may have evolved over time.
In other words, such a framework doesn’t necessarily favor right- or left-wing causes — or, for that matter, consumers or businesses.
Here is what you need to know about Gorsuch’s record on consumer issues — and what it might suggest about future rulings.
He could wind up undermining agency rules.
One of Gorsuch’s most controversial positions is his stance on how much leeway federal agencies should get in interpreting laws written by Congress.
Typically, courts tend to defer to federal agencies when it’s not clear how Congress intends a law to be enforced. The legal principle underpinning that is known as “Chevron deference,” named after a 1984 Supreme Court case involving oil company Chevron — and it makes a certain amount of intuitive sense. While judges may be experts in the law, officials that work for federal agencies deal more regularly with the consumers and industries they oversee, often making it easier for them to gauge rules’ real-world impact.
Gorsuch, however has sharply questioned the idea. In an opinion written last August, he wrote that the Chevron principle allowed “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.”
Although eliminating Chevron could have implications for many areas of American life, it would probably whittle away many consumer protections — particularly if a high court ruling were to curtail the power of agencies like the Consumer Financial Protection Bureau, the Securities and Exchange Commission and the Food and Drug Administration. “From mortgages to food safety, business will have greater ability to challenge rules they don’t like,” says Ira Rheingold, executive director of the National Association of Consumer Advocates, a legal association.
And he may frown on class-action lawsuits.
While businesses tend to like arbitration, they loathe class action lawsuits, which allow consumers and employees to bind together to pursue small claims over faulty products or unfair treatment. Businesses — and many conservative jurists — have argued that these cases expose companies to frivolous litigation, especially since lawyers often stand to score million-dollar paydays.
While all that is true, the threat of class actions can also have a deterrent effect, prompting companies to curb questionable behavior and potentially benefiting even those consumers who are never party to a suit.
Gorsuch hasn’t issued any major class-action rulings as a judge, but he did sharply criticize the suits while practicing as a corporate lawyer — dubbing them a “free ride to fast riches” in a trade publication article in 2005. Of course, since an attorney’s job is to advocate on behalf of his or her clients, there is no guarantee this line of argument represents Gorsuch’s current views. All the same, says Rheingold, “when lawyers make public statements, that typically reflects where their allegiances lie.”
But he might be pro-consumer when it comes to forced arbitration.
Forced arbitration — where contracts for services ranging from cell phone plans to financial advice require consumers to sign away their right to a day in court — has long been a bete noire of consumer advocates. To be sure, arbitration has some advantages. Advocates say, for instance, it’s a cheaper and simpler way to resolve small-scale disputes. But consumer groups have complained that lopsided cookie-cutter contracts give customers no realistic way to opt out. What’s more, because arbitrations are private proceedings, corporations can tweak the rules to suit themselves, potentially stacking the deck against consumer claims.
In general, conservative judges, who tend to both favor small-government solutions and sympathize with business, have a reputation of promoting arbitration. Gorsuch’s originalist legal approach means he may be an exception, however — at least according to one arbitration expert.
The 1925 Federal Arbitration Act, which serves as the cornerstone for most current arbitration law, is much narrower in scope than judges have subsequently found, according to Imre Szalai, a law professor at Loyola University in New Orleans. That, he says, raises the prospect that Gorsuch could advocate rolling back some recent arbitration rulings that are regarded as helping business.
“Supreme Court case law has extended the statute far beyond its original content,” Szalai explains.