Gorsuch’s ‘Mainstream’ Measurement

Supporters of Judge Neil Gorsuch’s Supreme Court nomination describe him as a “mainstream judge.” Their evidence: He has sided nearly 99 percent of the time with the majority on the 10th U.S. Circuit Court of Appeals, and 97 percent of the court’s rulings were unanimous.

But those statistics are not unusual and provide no insight into how Gorsuch may rule as a justice on the high court.

The “vast majority” of federal appeals court cases are “decided without dissent,” and the 10th Circuit “is no exception to this general trend,” the nonpartisan Congressional Research Service said in an analysis of Gorsuch’s record.

The CRS report said 2.54 percent of the opinions issued by the 10th Circuit from 1998 to 2009 included a written dissent, citing a 2010 paper in the Loyola of Los Angeles Law Review that reviewed the opinions of six circuit courts. That paper found the 3rd Circuit (2.33 percent) and the 5th Circuit (1.14 percent) had lower dissent rates than the 10th Circuit.

As for Gorsuch, the CRS calculated the percentage of written dissents among seven judges on the 10th Circuit, and found that Gorsuch “displayed relatively more willingness to dissent from others’ majority opinions than some colleagues.” Gorsuch’s rate of dissent of 1.6 percent “places him in the middle” among his colleagues.

Christopher A. Cotropia, who authored the 2010 paper cited by the CRS, told us that the dissent rates for Gorsuch and his court say more about how federal appeals courts work than how Gorsuch may rule on the Supreme Court.

“He’s doing what most appellate court judges do,” Cotropia, a law professor at the University of Richmond, said in an interview. “It’s not instructive as to what he will do when he is one of nine [on the Supreme Court].”

Cotropia illustrated his point by determining the dissent rates for two associate justices, Samuel A. Alito Jr. and Sonia Sotomayor, who previously had served on circuit courts. Alito had a 1.6 percent dissent rate on the 3rd Circuit Court and Sotomayor had a 0.69 percent dissent rate on the 2nd Circuit. Nevertheless, the judges are on opposite extremes of the court. By one measure, Sotomayor is the most liberal of the Supreme Court justices and Alito is the second most conservative.

Republican Talking Point

President Donald Trump’s selection of Gorsuch in late January to replace the late Justice Antonin Scalia has set off a historic partisan battle in the Senate. That battle came to a head on April 6, when Senate Majority Leader Mitch McConnell invoked the so-called “nuclear option” to advance Gorsuch’s nomination.

Unable to muster the 60 votes needed to end a Democratic filibuster, McConnell changed the Senate rules to allow a simple majority of 51 votes to end the filibuster. The Senate is now expected to confirm Gorsuch’s nomination April 7 by a simple majority. The Republicans control 52 Senate seats.

Throughout the contentious confirmation process, the White House and Republicans described Gorsuch as “mainstream,” while Democrats have criticized him as “extreme.” Those are subjective terms, and each side is entitled to its opinion.

What caught our attention is Republicans’ repeated use of the same statistics as evidence of Gorsuch’s “mainstream” judicial record.

When the Senate Judiciary Committee approved Gorsuch’s nomination on April 3 along party lines, Republican Sen. Chuck Grassley said that Gorsuch’s record on the federal appeals court “falls well within the mainstream.”

Grassley, April 3: In the 10 years since, his record on the bench has proved that the judge falls well within the mainstream. He’s participated in 2,700 cases. He’s voted with a majority 99 percent of the time, and roughly 97 percent of those 2,700 cases were decided unanimously.

In a blog item posted April 4, the White House used the same statistics to describe Gorsuch as “the ultimate example of a mainstream judge.” The blog item said, “In the more than 2,700 cases he has participated in on the 10th Circuit, 97 percent of them have been unanimously decided and he was in the majority 99 percent of the time.”

Two days earlier on “Fox News Sunday,” Senate Majority Leader McConnell gave a truncated version of the GOP talking point: “In the majority, 99 percent of the time. Ninety-seven percent of his rulings were unanimous.”

Gorsuch himself repeatedly cited the statistics during his confirmation hearings. On March 22, Gorsuch described the 10th Circuit Court’s low dissent rate as “an amazing accomplishment.”

Gorsuch, March 22: And even then of those over the last 10 years we’ve been unanimous 97 percent of the time in the cases I’ve participated in. That’s a wonder. That’s an amazing accomplishment.

But such high rates of unanimity are not unusual for the federal courts of appeals, as the Congressional Research Service explained in its report on Gorsuch’s record.

CRS, March 8: Federal appellate judges are bound by Supreme Court and circuit precedent and, therefore, are not normally in a position to espouse freely their views on particular legal issues in the context of their judicial opinions. Moreover, unlike the Supreme Court, which enjoys “almost complete discretion” in selecting its cases, the federal courts of appeals are required to hear many cases as a matter of law. As a result, the appellate courts consider “many routine cases in which the legal rules are uncontroverted.” Perhaps indicative of the nature of federal appellate work, the vast majority of cases decided by three-judge panels of federal courts of appeals are decided without dissent. The Tenth Circuit, where Judge Gorsuch serves, is no exception to this general trend, with the overwhelming majority of opinions issued by that court being unanimous.

In footnotes, the CRS cites a book by law professor Frank B. Cross of the University of Texas Law School, “Decision Making in the U.S. Courts of Appeals,” which notes the “relative paucity of circuit court panel dissents.” The CRS also cited Cotropia’s paper, “Determining Uniformity Within the Federal Circuit by Measuring Dissent and En Banc Review,” noting that it found “from 1998 to 2009, 2.54% of the opinions issued by the Tenth Circuit included a dissent.” As we said, two of the six courts that Cotropia reviewed had lower percentages than the 10th Circuit.

Cotropia said the nature of how federal appeals courts work explains the lack of dissents. Unlike the Supreme Court, which can pick and choose its cases, the appeals court must take all appeals and “a lot of cases are just slam dunks,” he said. Because it must take all cases, the appeals court also has a heavy workload and part of the job is “just keeping the trains running.” Also, he said, appeals court dissents are not cited often, but “a Supreme Court dissent carries a lot more weight.”

In fact, Gorsuch himself in delivering the Thirteenth Annual Barbara K. Olson Memorial Lecture at the Federalist Society said the 10th Circuit’s high percentage of unanimous rulings is “pretty typical.”

“Over 90 percent of the decisions issued by my court are unanimous; that’s pretty typical of the federal appellate courts,” Gorsuch said in his speech, which was reprinted in the Harvard Journal of Law and Public Policy.

As for Gorsuch, this is what the CRS reported:

  • Gorsuch authored 778 majority opinions and 12 of them, or 1.5 percent, were accompanied by written dissents.
  • Gorsuch authored 33 dissenting opinions to accompany 2,060 decisions in which a dissent or concurrence could occur. That’s a 1.6 percent dissent rate, which “places him in the middle of his colleagues” — fourth among seven judges included in the CRS study. Judge Jerome A. Holmes had the lowest dissent rate at 0.6 percent.

“Judge Gorsuch’s rate of dissent is pretty much on the mean with other circuits and judges I have looked at,” Cotropia told us. “He is certainly not the lowest, but he does not reach the higher end as well. I don’t know that it tells us much at all.”

CRS also provides this word of caution about appeals court judges who join in majority opinions.

CRS, March 8: The act of joining an opinion authored by another judge does not necessarily reflect full agreement with the underlying opinion. For example, in an effort to promote consensus on a court, some judges will decline to dissent unless the underlying issue is particularly contentious. As one commentator notes, “[T]he fact that a judge joins in a majority opinion may not be taken as indicating complete agreement. Rather, silent acquiescence may be understood to mean something more like ‘I accept the outcome in this case, and I accept that the reasoning in the majority opinion reflects what a majority of my colleagues has agreed on.’”

Despite these caveats about the relative meaning of dissent rates, we have found that senators on both sides of the aisle have cited such statistics over the years when supporting their party’s Supreme Court nominees.

Echoes of Sotomayor, Alito Hearings

During the 2006 confirmation hearings for Supreme Court nominee Samuel A. Alito Jr., Grassley and Sen. Orrin Hatch told Alito that he had a dissent rate of 1.6 percent of cases that he decided on the 3rd Circuit.

Grassley, Jan. 11, 2006: I recall from reading a synopsis of your opinions, and the reality is, as I see it, you don’t disagree with majority opinions more frequently than most Federal appeals judges do in similar cases. And of more than 4,800 cases—and that we got from the Washington Post. But of more than 4,800 cases that you decided during your tenure on the Third Circuit, you dissented only in 79 cases, which would be only 1.6 percent of all those cases.

Hatch, Jan. 11, 2006: Well, would it surprise you to know that you have dissented only 79 times in nearly 5,000 cases in which you have participated? That comes to about 1.6 percent, which is considerably lower than most others who have been on the appellate courts.

Cotropia, the University of Richmond law professor, confirmed Alito’s 1.6 percent dissent rate for us using the same method that the CRS used to calculate the rate for Gorsuch. Cotropia found that Alito had authored 82 dissents on 5,192 majority opinions.

(Technical note: Unlike the CRS, Cotropia did not exclude recusals by Alito. But he said that would be such a small number as to have zero effect on Alito’s dissent rate.)

During the confirmation hearings for Justice Sonia Sotomayor in 2009, Democratic Sen. Chuck Schumer also touted Sotomayor’s low dissent rate, except he focused on the few times that Sotomayor disagreed with Republican-appointed judges.

Schumer said Sotomayor’s “record shows that she is in the mainstream” because she “has agreed with Republican colleagues 95 percent of the time” on the 2nd Circuit.

Republican Sen. Hatch acknowledged the Democratic talking point on her agreement with Republican-appointed judges — “for which I congratulate her,” he said. But Hatch added that many of the Democrats who cited that statistic in praise of Sotomayor’s “mainstream” record also opposed Alito “even though he had voted with his Democrat-appointed Third Circuit colleagues 99 percent of the time during a more longer appeals court career.”

Cotropia told us that actually Sotomayor had a lower overall dissent rate than either Alito or Gorsuch. He found she issued 25 written dissents out of 3,641 opinions for a rate of just 0.69 percent.

Sotomayor and Alito are good examples of how federal appeals judges “dissent more as justices on the Supreme Court,” he said.

Using the Supreme Court database maintained by the Washington University School of Law, Cotropia found that Alito has a Supreme Court dissent rate of 17.25 percent (124 dissents in 719 rulings) and Sotomayor has a 17.95 percent rate (84 dissents out of 468 rulings).

We also note that, as of the 2015 term, Sotomayor is the most liberal of the Supreme Court justices and Alito is the second most conservative, according to a 2016 study co-authored by Lee Epstein, the co-director of the Center for Empirical Research in the Law at the Washington University School of Law. Her study, “President-Elect Trump and his Possible Justices,” compared the judges on Trump’s list of Supreme Court candidates to sitting justices. For current justices, Epstein’s study used Martin-Quinn scores, which measure the relative location of current U.S. Supreme Court justices on an ideological scale based on their voting patterns.

“These judges, even with low dissent when judging on the appeals court, show their ideology when they go to the Supreme Court,” Cotropia said.

That same study projects Gorsuch — once confirmed to the Supreme Court, as expected — would fall “within the Alito-Scalia ideological range” and to the right of Alito.

We take no position on Gorsuch’s nomination or whether he is “mainstream” or not. What we have found, though, is that a circuit court judge’s overall dissent rate isn’t useful in determining a nominee’s ideology.

Updated, April 7: The Senate confirmed Gorsuch, 54 to 45, on April 7. Three Democratic senators — Joe Manchin, Heidi Heitkamp and Joe Donnelly — joined the GOP majority to approve the nomination.

 

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Not the Whole Story
Claimed Judge Neil Gorsuch’s record on the 10th U.S. Circuit Court of Appeals “falls well within the mainstream,” because “he’s voted with a majority 99 percent of the time” and “roughly 97 percent” of the cases he has participated in “were decided unanimously.”
Sen. Chuck Grassley
Chairman, Senate Judiciary Committee

Senate Judiciary Committee hearing
Monday, April 3, 2017
04/03/2017

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