Although I am not quite familiar with Judge Gorsuch’s scholarship or opinions, I have combed the opinions of the academics whom I trust to get a sense of his reputation. The opinion is unanimous among both liberal and conservative professors – Judge Gorsuch is an intelligent, distinguished jurist of integrity who will perform an admirable job as a Supreme Court Justice.
However, there is one element of his record which gives me pause, and that is his opinion on Chevron deference. Each opinion in itself is reasonable. And he does make a compelling argument for allowing judicial precedent take priority over agency procedures. However, it does deviate from the overal tradition of the court to give deference to settled SCOTUS precedent. Chevron has been settled law for decades now. It is one of the bedrocks of administrative law. Overturning this case will inevitably also overturn legions of its progeny.
And, of course, that will also affect the Federal Trade Commission and the Consumer Finance Protection Bureau. As it would all agencies.
Of course, first he has to be confirmed. If and when he is, he would need the support of four other justices, and the right case, to actually make headway on narrowing or even reversing Chvron (the latter being something I see the other Justices being reluctant to do). At the very least, Robert’s penchant for narrow holdings may control, and we could see the Court chip away at agency deference rather than make sweeping changes.
I should also mention here that there are rumors that President Trump would like to reverse the Board of Labor’s rule that financial advisors must act as fiduciaries to their clients, also known as the Fiduciary Rule. At this point it is only a rumor, but it is something those of us interested in consumer protection and finance will be watching quite closely. The Rule just went into effect January 1, so it will be a shame if it is not given the time to be field-tested and see how it affects consumers.