Today marks the second day of hearings for Supreme Court nominee Neil Gorsuch, who currently holds a post as a judge on the U.S. Court of Appeals for the Tenth Circuit in Denver, Colorado. As has been the case in the confirmation process for many other Supreme Court justices, Gorsuch’s hearings so far have been a partisan affair, providing opportunities for politicians on both sides of the aisle to grandstand either for or against President Trump’s nominee.
While some of this bad blood is standard political fare in Washington, D.C., it is even more vitriolic this time around. This is due in part to the Republicans’ refusal last year to confirm former President Barack Obama’s nominee, Merrick Garland, who by many accounts from around the political spectrum was a qualified and capable nominee. While some Democrats may legitimately object to Gorsuch’s rulings as an appeals court judge, it seems likely that no matter who President Trump nominated, many on the left would have opposed the nominee because of how Merrick’s nomination was ultimately ignored.
While there are many questions on specific rulings, overarching judicial philosophies, and other aspects of being a justice on the nation’s highest court to be considered, one of the topics that is most relevant for us at ConsumerSafety.org is whether or not a Justice Gorsuch would help protect consumer rights related to safety issues. And while politicians like to paint things black and white, when it comes to the question of consumer rights, the real answer is a little grayer.
Chevron Defense and Agency Rules
As Ian Salisbury explains over at Time Money, when a law or regulation is unclear, the courts have a tendency to defer to federal agencies, such as the Environmental Protection Agency (EPA) or the Food & Drug Administration (FDA). This convention is known as the “Chevron Defense,” named after a 1984 ruling in Chevron v. Natural Resources Defense Council, which has become one of the most cited decisions in American case law – although a number of legal scholars believe that courts were already offering such deference to agencies even before the Chevron case was decided.
The current worry on the part of some Democrats is that Judge Gorsuch has expressed some skepticism over the Chevron defense, arguing that regulatory agencies should not be allowed to make rules in gaps left by ambiguities of legislation. Rather, in Gorsuch’s view such gaps should be filled by Congress, while courts should strike down rules and regulations that fall within ambiguous areas of the law. This decision has led many to believe that Gorsuch would rule in favor of businesses over agencies chartered to regulate consumer safety issues.
However, it is worth noting that the issue might not be up to the Supreme Court in the long term anyway. There is currently a bill in Congress known as the Regulatory Accountability Act of 2017 (H.R. 5) that among other things would effectively eliminate the Chevron defense. This potential change falls under Congress’s power to define the scope of review for federal courts, and if this law is passed, it would require courts to interpret any gap or ambiguity in the law as outside an agency’s scope of authority.
As it is, whether the watering down or elimination of the Chevron defense takes place, it is impossible to know what impact it would have on consumers directly. The defense only applies to areas where legislation is ambiguous, and while the Chevron defense has been relied on in the past to uphold agency rules and regulations, it could be that other legal constructions might work as well in its absence.
Another area that some Democrats are worried about with respect to Gorsuch is that of class-action lawsuits and mass torts (such as multidistrict litigation). The general purpose of class actions and mass torts is to allow aggrieved parties – such as people who all bought the same product or brand of products – to band together and hold companies accountable for products and services that are dangerous or cause harm.
One such example are the numerous talc-related lawsuits against Johnson & Johnson. In these cases, plaintiffs claim the brand’s talc products cause ovarian cancer. To date, over $724 million in verdicts have been awarded to women who developed ovarian cancer after using Johnson’s Baby Powder, a talc-based product.
However, a common argument from companies and industry groups is that too many class actions are frivolous, leading to large payouts for relatively minor offenses. Such settlements, companies argue, lead to higher consumer prices with little gains in actual safety.
Gorsuch has not criticized class-action lawsuits directly, but in the past he has criticized lawyers who make lots of money from lawsuits, calling such actions a “free ride to fast riches.” It’s unclear whether this means that Gorsuch is opposed to all class-action lawsuits, or even most of them, but it does provide a signal that he could be more sympathetic to companies like Johnson & Johnson in cases like the upcoming bellwether trials to test the waters for ongoing Xarelto lawsuits, especially if he sees the suits as frivolous or unnecessary.
It is also worth noting that there is legislation currently working its way through Congress on the class action front as well. The Fairness in Class Action Litigation Act of 2017 (H.R. 985), passed by the House of Representatives earlier this month, looks to reform how class actions are certified by requiring that all members of the class suffer “the same type and scope of injury.” It will next go to the Senate, where Democrats are looking to put up a big fight.
Consumer Rights and Forced Arbitration
One area where Gorsuch may help consumers is with forced arbitration. Many companies that sell consumer products write clauses into their terms of service that require customers to use an arbitration service when products break down or cause injuries. This is particularly true with contract-based products and services, such as cell phones and data plans (think the Samsung Note7 debacle last year). The problem is that these arbitration services are not governed by the same consumer protection laws, and often the rules under which such arbitrations occur are determined by the companies forcing the arbitration.
A review of Gorsuch’s writings on arbitration laws by Edith Roberts at SCOTUSblog – a popular legal website that covers all matters related to the U.S. Supreme Court – has noted that in some cases Gorsuch has leaned on his originalist principles to reject the idea that consumers must not “be foisted on the parties at all costs.” This willingness to allow disputes to be handled in the courts, rather than through an arbitration process that is more likely to benefit companies, could be a good thing for consumers.
Many Unknowns Still Exist
Ultimately, how Gorsuch will rule on any particular case that comes before him as a Supreme Court justice remains to be scene. What is interesting to note, however, is that most Supreme Court rulings are unanimous. How one interprets such a fact – do justices agree on the really important things and disagree only on quirky partisan stuff, or vice versa? – the good news is that Gorsuch’s presence on the court is unlikely to change the number of unanimous and supermajority rulings by the court.
At any rate, if and when rulings come out that affect consumer safety issues, we will be here to let you know about them.