ENDNOTES

742 F.3d 922, 930-31 (10th Cir. 2014) (Gorsuch, J., concurring). While not directly on point, Judge Gorsuch also joined a Tenth Circuit opinion that could be read in support of disclosure rules. See Doe v. Shurtleff, 628 F.3d 1217 (10th Cir. 2010). As Judge Gorsuch wrote prior to his appointment to the Tenth Circuit in a brief for the Chamber of Commerce, in some instances the lack of disclosure of critical information can be “inconsistent with the very premise of an open capital market, which depends on the freest possible flow of information.” See Brief of Amicus Curiae for the United States Chamber of Commerce at 17, Dura Pharm., Inc. v. Broudo, 544 U.S. 336 (2005) (citing Richard A. Posner, Economic Analysis of the Law 457-58 (6th ed. 2003)). This type of faux-support for disclosure while advocating for bigger-picture deregulation is not cause for celebration.

See, e.g., Randall v. Sorrell, 548 U.S. 230, 266-67 (2006) (Thomas, J., concurring). Justice Thomas’s concurrence was joined by Justice Scalia. See id.

See Riddle, 742 F.3d at 927-28. The panel held that the right to contribute money to a candidate is a fundamental right, and struck down the contribution limits under an intermediate scrutiny or a “closely drawn” standard of review.

See id. at 930-31 (Gorsuch, J., concurring). Specifically, he opined: [ e challengers] say that contributing in elections implicates a fundamental liberty interest, that Colorado’s scheme favors the exercise of that fundamental liberty interest by some at the expense of others, and for this reason warrants the most searching level of judicial scrutiny. For my part, I don’t doubt this line of argument has much to recommend it. e trouble is, we have no controlling guidance on the question from the Supreme Court. And in what guidance we do have lie some con icting cues. Id. It is worth reiterating that the statute challenged in Riddle implicated Equal Protection, in addition to First Amendment, concerns, since it discriminated on the basis of the political candidate that a donor supported. It is not entirely clear that Judge Gorsuch would apply strict scrutiny review in a simple First Amendment challenge to contribution limits (for example, in a case challenging a limit as being too low). The majority opinion also characterized making political contributions as a “fundamental right” while not going so far as to apply strict scrutiny. Riddle, 742 F.3d at 927. Yet, Judge Gorsuch wrote separately to discuss the appropriate level of scrutiny, and, if appointed to the Supreme Court, it could well be Gorsuch’s prerogative to provide the “controlling guidance” he said was missing, and to clarify that restrictive, strict scrutiny review should apply to contribution limits.

See, e.g., Crawford v. Marion Cty. Election Bd., 553 U.S. 181 (2008) (applying a lax, “undue burden” standard to challenged voter ID provision).

See Hobby Lobby, 723 F.3d 1114 (finding that the freedom to worship must be protected by a correlative freedom to engage in corporate efforts to those ends). Judge Gorsuch wrote separate concurrence opining that the Green family behind the Hobby Lobby company was entitled to additional relief, beyond the relief provided to the corporate “person.” See id. (Gorsuch, J., concurring).

558 U.S. 310, 365 (2010) (“...the Government may not suppress political speech on the basis of the speaker's corporate identity.”).

In Hobby Lobby Stores, Inc. v. Sebelius, Judge Gorsuch joined the majority to hold that for-profit corporations have rights under the Free Exercise clause of the First Amendment. 723 F.3d 1114 (10th Cir. 2013). The opinion relied on Citizens United v. FEC, a Supreme Court opinion ruling that the First Amendment’s protection of political speech extends to for- profit corporations). 558 U.S. 310 (2010).

See, e.g., David Saleh Rauf, Citizens United lawyer targets Texas campaign finance laws, Seattle Times (Feb. 6, 2017), http://www.seattletimes.com/nation-world/citizens-united-lawyer-targets-texas-campaign-finance-laws/.

See, e.g., Compass Environmental, Inc. v. OSHRC, 663 F.3d 1164 (10th Cir. 2011)(Gorsuch, J., dissenting) (arguing that a fine imposed by the Dep’t of Labor because the company failed to train its employee, resulting in the employee’s death, should be overturned); TransAm Trucking, Inc. v. Admin. Review Bd. No. 15-9504, 2016 WL 3909526 (10th Cir., July 15, 2016) (Gorsuch, J., dissenting) (concluding a company did not unlawfully retaliate for whistleblowing). Gutierrez v. Lynch, 834 F.3d 1142, 1149-59 (10th Cir. 2016) (Gorsuch, J., concurring). Judge Gorsuch’s radical views against affording administrative agencies deference in interpreting the laws they are charged with enforcing makes him more conservative on this issue than former Justice Scalia. See Eric Citron, Potential nominee profile: Neil Gorsuch, scotusblog.org (Jan. 13, 2017, 12:53 PM), www.scotusblog.com/2017/01/potential-nominee-profile-neil-gorsuch/.

See Center for Media and Democracy, U.S. Chamber of Commerce, sourcewatch.org (Aug. 2, 2016, 9:37 AM), http://www.sourcewatch.org/index.php/U.S._Chamber_of_Commerce. Two others on Trump’s rumored short list for Supreme Court Justice, Justices Sykes of the Seventh Circuit and Justice Kethledge of the Sixth Circuit, also have ties to the Chamber of Commerce at the state level.

See Brief of Amicus Curiae for the United States Chamber of Commerce, supra note 1; Neil M. Gorsuch, No Loss, No Gain, Legal Times (Jan. 31, 2005).

See Neil M. Gorsuch, Of Lions and Bears, Judges and Legislators, and the Legacy Of Justice Scalia, 66 Case W. Res. L. Rev. 905, 906 (2016).

See, e.g., Young v. Dillan Cos., Inc., 468 F.3d 1243 (10th Cir. 2008); Alvarado v. Donley, 490 Fed. App’x. 932 (10th Cir. 2012); Officer v. Sedgwick Cty., 226 Fed. App’x. 783 (10th Cir. 2007). See also Wilson v. City of Lafayette, 510 Fed. App’x. 775 (10th Cir. 2013). In this case, Judge Gorsuch ruled in favor of a law enforcement officer in a case involving an officer’s excessive use of force causing the death of a young man. While the young man in the Wilson case was white, Gorsuch’s analysis indicates a willingness to shield trigger-happy law enforcement officers from liability, a problem that we know disproportionately affects people of color.