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What does Justice Gorsuch mean for Corporate Personhood?

By Declan Cleary on Monday, May 22nd, 2017
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It is plainly apparent that the late Justice Antonin Scalia had a judicial record which sought to expand the rights of corporations as individuals.[1] Yet, with Neil Gorsuch’s recent approval to the bench, the question stands as to whether the somewhat controversial notion of corporations as people will broaden, decline, or maintain the status quo. Despite detractors pointing to years of involvement as a corporate lawyer, Gorsuch’s supporters insist he will remain impartial and be driven in his decisions by a personal sense of right.[2]

Justice Gorsuch’s most notable jurisprudence on the topic of corporations comes from his time as a judge for the 10th Circuit Court of Appeals, where he penned a concurrence in the Hobby Lobby case.[3] The case concerned whether employers would be liable for their employee’s healthcare costs when those healthcare costs would include contraception – a practice to which the employers lodged a religious objection.[4] Of particular note from Gorsuch’s concurring opinion is his focus on the employer’s rights stemming from a genuinely held religious belief which the Affordable Care Act placed a “substantial burden” upon, in what Gorsuch saw as a violation of the Religious Freedom Restoration Act.[5] The Supreme Court would go on to affirm the majority ruling in the Hobby Lobby case one year later.[6]

What we may hope to draw from the reasoning used by Gorsuch in Hobby Lobby is that he is not beholden to corporate interests, but rather he believed it appropriate to expand them when necessary to protect religious freedom of employers within a corporation. This line of thinking is supported by a majority opinion written by Gorsuch in the following year as a 10th Circuit Judge whereby he ruled that a Native American prisoner was entitled to the use of a sweat lodge as a demonstrated part of his religious practice.[7]

Overall, Scalia’s replacement seems to mean that the status quo will hold. Though Gorsuch’s approval continues a conservative majority, his rhetoric does not suggest that he will lead the charge in expanding corporate rights. It may ultimately be too soon to pass judgment on the new justice; Gorsuch has only just recently cast his first consequential vote for the Supreme Court, and his first majority opinion is presumably forthcoming.[8] With what will almost surely be a lengthy history on the bench, we eagerly anticipate the first look as to how Justice Gorsuch will rule on matters before the Court.

For more information on Corporate Personhood, check out James Wright’s article in the 3rd issue of our 49th volume at http://repository.jmls.edu/cgi/viewcontent.cgi?article=2594&context=lawreview.


[1] See Lyle Denniston, Analysis: The personhood of corporations, SCOTUSblog (January 21, 2010), http://​www.scotusblog.com/​2010/01/analysis-the-personhood-of-corporations/ (noting how Scalia’s concurrence in the Citizens United case sought to bolster the strength of the majority ruling and enhance the rights granted to corporations through an originalist interpretation).

[2] Jeffrey Rosen, A Supreme Court Nominee Alert to the Dangers of Big Business, The Atlantic (March 20, 2017), https://www.theatlantic.com/politics/archive/2017/03/gorsuchs-nuanced-record-on-business/520101/.

[3] Hobby Lobby Stores Inc. v. Sebelius, 723 F.3d 1114 (10th Cir. 2013).

[4] Id. at 1122 – 25.

[5] Id. at 1156 – 57.

[6] Burwell v. Hobby Lobby Stores Inc., 134 S. Ct. 2751 (2014).

[7] Yellowbear v. Lampert, 741 F.3d 48 (10th Cir. 2014).

[8] Stephen Wermiel, SCOTUS for law students: Waiting for Gorsuch, SCOTUSblog (May 18, 2017), http://www.scotusblog.com/2017/05/scotus-law-students-waiting-gorsuch/.


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