What impact will Judge Gorsuch really have on the Supreme Court?

One of the most important functions the Supreme Court performs is to review regulatory decisions made by agencies. In that process, the Supreme Court also announces the standards that lower courts must use when they review such agency decisions. Judge Gorsuch is a political conservative, a judicial conservative, and a textualist. Generally speaking, judges and justices with that combination of characteristics tend to be more skeptical of the benefits of government regulation and less deferential to agencies than are judges and justices who do not have those characteristics.

Judge Gorsuch’s general tendencies are not likely to have a major effect on the pattern of Supreme Court decisions in the near future, however, for three reasons. First, it is impossible to use any judge’s general tendencies as the basis to predict with confidence how the judge will vote in any specific case. Even the most conservative judges vote to uphold many agency decisions to regulate, and even the most liberal judges vote to reject some agency decisions to regulate.

{mosads}Second, Judge Gorsuch’s voting patterns in regulatory cases are likely to be similar to those of Justice Scalia. Replacing one conservative justice with another conservative justice is likely to have little effect on the high court’s general pattern of decisions. By contrast, replacing Justice Ginsburg, Justice Breyer, or Justice Kennedy with a conservative almost certainly would produce major changes. Those changes would include rejection of a much higher proportion of agency decisions to regulate and announcement of new standards that lower courts must apply in regulatory cases that would produce a general increase in the proportion of agency decisions to regulate that lower courts reject.

Third, agencies in the Trump administration are unlikely to issue many rules that impose new regulatory requirements, so the courts will have very few opportunities to uphold or to reject agency decisions to increase regulatory requirements over the next several years. Agencies in the Trump administration are more likely to try to repeal many existing rules than to issue new rules. Thus, for instance, one of President Trump’s executive orders requires every agency to repeal two rules for every new rule the agency issues.

Agencies that attempt to comply with President Trump’s orders to repeal existing rules will experience great difficulty persuading courts to uphold their decisions. If the rule was issued through use of the notice and comment process, the agency must use that same time-consuming and resource-intensive process to repeal the rule. The agency must then explain why it is repealing the rule with reasoning that is tied to the statute that was the basis for the rule, for example, “the decision to repeal this air quality rule will further the purposes of the Clean Air Act because…” Convincing explanations of that type will be difficult, if not impossible, to write in many cases.

Any agency that attempts to rely instead on an executive order will not be successful in persuading a court to uphold the agency’s decision to repeal the rule. Any court would hold that such an agency action is arbitrary, capricious and not in accordance with law. A conservative textualist like Judge Gorsuch would be highly unlikely to vote to uphold such an agency action. Like Justice Scalia, Judge Gorsuch would reject as unlawful any agency action that is based on the indefensible belief that an executive order can contradict, amend, or qualify a statute.

Richard J. Pierce Jr. is the Lyle T. Alverson Professor of Law at George Washington University. His work been cited in hundreds of judicial opinions, including more than a dozen opinions of the U.S. Supreme Court.

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