What Justice Gorsuch’s Confirmation Means Immediately for Manufacturers

By April 27, 2017General

On Monday, April 17, newly minted Associate Justice Neil Gorsuch took his seat as the 113th justice of the U.S. Supreme Court. Following a highly partisan and divisive Senate confirmation process, Justice Gorsuch likely found relief in the more cordial and genteel atmosphere of the court. With no time to spare on first-day jitters, the newest justice heard oral arguments on day one, waiting only 11 minutes before diving into questioning the advocates.

Justice Gorsuch is joining the Supreme Court near the end of the October 2016 term, with 13 arguments packed into the final weeks of April. Among the cases to be heard yet this term are two in which the NAM’s Manufacturers’ Center for Legal Action (MCLA) has played a role: BNSF v. Tyrrell and Bristol-Myers Squibb v. Superior Court of California. Both cases involve the issue of jurisdiction in state court when companies are based outside of that state and have no particular connection to the jurisdiction. The cases provide an opportunity for the court to clarify the reach of its 2014 holding in Daimler AG v. Bauman and to further rein in the problem of plaintiff forum shopping among state courts.

In addition to participating in oral arguments on these jurisdictional cases, Justice Gorsuch will also help to decide whether review will be granted in three cases the MCLA has supported with briefs advocating certiorari. These involve 1) whether states can alter their obligations under the Multistate Tax Compact; 2) whether courts may disrupt the “free and clear” provisions of bankruptcy law to allow claims against the bankrupt entity; and 3) whether due process is violated when jail time is imposed on corporate officers based on strict criminal liability in the absence of criminal intent.

Looking further ahead, three important manufacturing cases are already lined up for argument in the fall when the October 2017 term begins. Justice Gorsuch’s textualist approach will no doubt be felt in all three. These cases deal with the issues of 1) which court has jurisdiction for challenges to the Environmental Protection Agency’s definitions of bodies of water subject to the Clean Water Act; 2) the permissibility of class waivers in employment arbitration agreements; and 3) the scope of private rights of action under Securities and Exchange Commission disclosure rules.

The outcomes of all of these cases will benefit from consideration by a fully staffed panel of justices. While the court has done its best to keep cases moving over the past 14 months since the death of Justice Antonin Scalia, the business of the court has no doubt been hampered by the prospect of producing 4–4 ties that diminish the role of the Supreme Court by simply affirming the lower court’s holding while failing to make new law on issues important enough to have reached the court. At a time when political rancor and divisiveness are at a high point, it is a good thing for American democracy to have a full complement of justices and a fully functioning Supreme Court. Welcome Justice Gorsuch!

Linda Kelly

Linda Kelly

Senior Vice President and General Counsel at National Association of Manufacturers
Linda Kelly is the senior vice president and general counsel at the NAM. In addition to handling NAM’s organizational legal compliance, Ms. Kelly also oversees the work of the NAM’s Manufacturers’ Center for Legal Action, directing the NAM’s litigation strategy in support of its policy objectives. Ms. Kelly is a seasoned Washington policy lawyer with more than 20 years of experience working on a diverse array of legal and public policy issues at the state, federal and international levels.
Linda Kelly

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