Seven of the eight current Supreme Court justices joined the highest court after holding a seat on an appeals court. To show how nominee Neil Gorsuch’s experience measures up, The Washington Post compared how often the judges published precedent-setting opinions on topics at the appeals level with how frequently cases on the same topics are heard at the highest court. Gorsuch’s tenure on the U.S. Court of Appeals for the 10th Circuit reveals how relevant his decade of experience on the bench really is for the topics the Supreme Court tackles most often.

Relative exposure to frequent Supreme Court legal topics





In his decade on the 10th Circuit, Gorsuch heard and wrote opinions on hundreds of cases that set legal precedent. Judges on appeals courts face a “vastly larger” volume of cases than those on the highest court, and there isn’t as much information available about each case, said Adam Feldman, a scholar of the court who created the blog Empirical SCOTUS blog.

Feldman provided data from the legal research service Westlaw, which categorizes judges’ published, precedent-setting opinions by topic. By comparing how frequently a judge saw one of 23 legal topics on the appeals court with how frequently the same topics reached the Supreme Court in the last three years, The Washington Post created a relative exposure index that measures how prepared a justice might be for the job.

The distinct focus of each appeals court circuit accounts for some of the differences in each judge’s record. Generally, the 10th Circuit hears more standard cases in criminal law and private civil litigation than the D.C appeals court, which handles more administrative agency appeals. A Congressional Research Service report on Gorsuch’s experience said “the Tenth Circuit rarely has the opportunity to address certain topics, such as international law and foreign affairs, terrorism and national security, and major agency actions in the field of environmental law.”

Here’s how the cases that the nominee and the justices heard in various areas of law compare. The topics are sorted in order of how frequently they are heard on the Supreme Court.

Criminal





According to the CRS report, more than 40 percent of the cases on the 10th Circuit’s docket each year involve criminal law or petitions from federal or state prisoners. Judges don’t write opinions for most of these. When he did write opinions in criminal cases, Gorsuch tended to side with the state and thus gained a reputation as a tough-on-crime judge, Feldman said.

Criminal cases that reach the Supreme Court are typically more complex, and the justices there must decide how the Constitution sets the rules of criminal procedure. Gorsuch has ruled on these larger issues, though. In one case on the 10th Circuit, the majority of judges decided “No Trespassing” signs at a house where the defendant was staying did not prevent federal agents from knocking on the door to try to find him. Gorsuch dissented. “State officials no less than private visitors could be liable for trespass when entering without the homeowner’s consent,” Gorsuch wrote.

Intellectual property





Intellectual property law covers copyrights, trademarks and patents. Judges on appeals courts don’t see a lot of precedent-setting cases in this area because their decisions often only apply to specific companies at the local and regional level.

Corporate governance





Gorsuch’s experience with corporate governance law, which deals with how companies are organized and who has major stakes in them, is a good example of his textualist approach to judicial decision-making.

Feldman said Gorsuch appears to follow the methodology taught in law school statutory interpretation classes. First, lawyers are taught to consider the Constitution; second, other statutes; and third, as a last resort, other documents that might hint at what lawmakers who wrote the law intended for it to do. “Judge Gorsuch has expressed skepticism about a jurist’s ability to discern a single legislative ‘intent,’” the CRS report said.

All this means “people shouldn’t peg him down as a strict liberal or conservative — he interprets the law as it’s written,” Feldman said.

Taxation





Tax law is another area where Gorsuch’s textualist approach informs his decision making. However, Feldman said the Supreme Court sees fewer tax cases now than in the 1930s, and generally only when taxes are related to larger constitutional issues.

Immigration





One of Gorsuch’s immigration cases is a good lens for looking at one area of law where he differs from the sitting justices — a legal doctrine known as “Chevron deference.”

In a 1984 case called Chevron v. NRDC, the Supreme Court said that when the words of a statute are ambiguous, judges should defer to the expert opinions of the federal agencies charged with carrying out the law.

In a case involving how long an illegal immigrant named Hugo Rosario Gutierrez-Brizuela had to wait before trying to win lawful residence in the country, Gorsuch called for reconsidering this doctrine. Post reporter Robert Barnes wrote that some conservatives fear that “ Chevron deference” gives the executive branch an ability to write the law instead of simply enforcing it.

Environment





Challenges to national environmental laws are usually filed directly in the D.C. Circuit Court, so most environment-related cases that Gorsuch saw on the 10th Circuit were narrow in scope. “He’s going to face these federalism issues on the Supreme Court, where it has implications beyond just the local level,” Feldman said. The CRS report said the Supreme Court is often closely divided on environmental issues, so Gorsuch’s vote could be key.

Products liability





Gorsuch stands to have great influence on the court in civil liability.

One of the cases that Gorsuch listed on a Senate Judiciary Committee questionnaire as among the “the 10 most significant cases over which you presided” was a products liability suit. In that case, he upheld the lower court’s decision against a defendant who was injured by the off-label use of a medical device.

Though he has relatively less experience writing on products liability law than some of his potential Supreme Court colleagues did when they were on appeals courts, Gorsuch stands to influence how the court handles civil liability if he is confirmed. He has supported other liability decisions seen as pro-business, the CRS report said.