Myth/Fact: Judge Gorsuch's Record Is Not Extraordinarily Mainstream

MYTH: Judge Gorsuch and Republican senators are pointing to the fact that 97% of Judge Gorsuch’s cases on the 10th Circuit Court of Appeals were decided unanimously, likely trying to argue that he is a mainstream nominee.

FACT: A 97% unanimity rate at the circuit court level is not unusual. Appellate courts are required to hear many cases on non-controversial issues of law, which can be, and often are, decided unanimously.

Take the 10^th Circuit, which averaged 2.3% dissents from 1990-2007. Indeed, across all circuit courts from 1990-2007, the average dissent rate was 2.7%. [The Behavior of Federal Judges, Epstein Landes and Posner, 2013; p.265]

• “As shown in Table 6.3, the dissent rate is 57.4 percent in the Supreme Court and only 2.7 percent in the courts of appeals, though the rate varies widely across circuits and also over time (see minimum and maximum columns).”

FACT: When it comes to decisions that are not unanimous – the difficult cases - the stats are much more telling.  Of the 168 non-unanimous opinions which Judge Gorsuch heard, he wrote or joined the majority in only 96 of them (57%).  He wrote separately 66 times (39%) and joined another judge’s concurrence or dissent 6 times (4%). 

FACT: While Judge Gorsuch joined many unanimous opinions, he also took pains to write his own opinion (either in concurrence or dissent) many times.  He even wrote concurrences to majority opinions he himself wrote.

Concurrences: Judge Gorsuch has authored 31 concurrences, including 2 concurrences to unanimous panel opinions that Judge Gorsuch himself wrote.  In other words, 31 times he wrote separately to say he agreed with the outcome but had a different view of out to reach it.

Dissents: Judge Gorsuch wrote 26 dissents.  In other words, 26 times his opinion could not garner majority support from his colleagues.

• 18 of those dissents were from panel decisions;
• 8 dissents were from denial of rehearing on banc.  In several of those denial of rehearing dissents, the request for rehearing (and Judge Gorsuch’s dissent supporting it) had been made not by the parties to the case but by an anonymous judge on the Tenth Circuit. 

Partial Concurrence/Dissents:  Judge Gorsuch has written 9 partial concurrence or dissents.  In other words, he has written separately 9 times to say he couldn’t fully support the outcome of the majority.

MYTH:  Judge Gorsuch and Republican Senators are pointing to the fact that he has “never been overturned by the Supreme Court,” as evidence that his jurisprudence is beyond reproach. 

FACT: 

• The Supreme Court hears only about 80 cases per year.  That means there are few odds that one of the 160 circuit court judges around the country will have a decision of theirs reviewed by the Court.

• Furthermore, many of Judge Gorsuch’s most troubling and activist opinions have been issued as separate opinions – dissents and concurrences (some to his own majority opinions).   These separate decisions are not the main decision and therefore insulated  from Supreme Court review.