Justice Gorsuch’s First Supreme Court Dissent is Scaliaesque on Statute Construction but Non-Scalia on Public Rights Doctrine (Perry v. Merit Systems)


By Donald L. Swanson

On June 23, 2017, Neil Gorsuch issues his first dissenting opinion as a Supreme Court Justice. The case is Perry v. Merit Systems Protection Board (Supreme Court Case No. 16-399). It’s about statutory procedures for litigating Federal employee claims.  The dissent by Justice Gorsuch illuminates a comparison of ideas with those of his predecessor, the now-deceased Justice Antonin Scalia.

Scaliaesque Moments – Statute Construction

There are certainly some Scaliaesque moments illuminated in Justice Gorsuch’s dissent. These are when Justice Gorsuch writes about applying statutes as written. Here are two examples from the Gorsuch dissent.

–“If a statute needs repair, there’s a constitutionally prescribed way to do it. It’s called legislation. To be sure, the demands of bicameralism and presentment are real and the process can be protracted. But the difficulty of making new laws isn’t some bug in the constitutional design: it’s the point of the design, the better to preserve liberty”; and

–“At the end of a long day, I just cannot find anything preventing us from applying the statute as written—or heard any good reason for deviating from its terms. Respectfully, Congress already wrote a perfectly good law. I would follow it.”

Non-Scalia Moments – Public Rights Doctrine

But we are beginning to see a gulf separating former-Justice Scalia and now-Justice Gorsuch on public rights doctrine.

Perry v. Merit Systems is a classic example of a public rights doctrine case: a suit against the Federal government based on rights created by Congress and decided by a non-Article III body with a deferential appellate review.  There is nothing controversial here.

Public rights doctrine, however, has a long history of hot-disputes in the bankruptcy context.

–A Scalia / Gorsuch Contrast

It’s difficult to imagine Justice Scalia allowing the Perry v. Merit Systems occasion to pass without at least mentioning public rights doctrine.  We’d expect Justice Scalia to write in such a case about public rights doctrine and explain how Perry’s claims fit nicely within its purview.

There is no such public rights reference from Justice Gorsuch in his Perry v. Merit Systems dissent.

–Scalia History on Public Rights Doctrine

Antonin Scalia became a Supreme Court Justice in 1986. So he missed the Supreme Court’s ruling in Northern Pipeline v. Marathon, 458 U.S. 50 (1982), where a four-Justice plurality nearly (but not quite) succeeded in declaring the entire Bankruptcy Code unconstitutional, based on distinctions between public rights and private rights (aka “public rights doctrine”).

After his appointment to the Supreme Court, Justice Scalia becomes the undisputed champion of public rights doctrine for bankruptcy issues.  Here are three examples of his position — and of its progressively-lesser levels of support as time goes along.

   1. In Granfinanciera v. Nordberg, 492 U.S. 33 (1989), Justice Scalia joins five other Justices in requiring jury trials for certain suits in bankruptcy, based on public rights doctrine.  Those five other Justices aren’t fond of the Bankruptcy Code: in footnote 16, for example, they (i) describe the Bankruptcy Code, enacted in 1978, as accomplishing “sweeping changes” and “radical reforms,” and (ii) accuse Congress of failing, in 1984 amendments, to consider constitutional implications of denying “the right to a jury trial in preference and fraudulent conveyance actions.”

Justice Scalia, in Granfinanciera, emphasizes a public rights doctrine element:

–“In my view a matter of ‘public rights,’ whose adjudication Congress may assign to tribunals lacking the essential characteristics of Article III courts, must at a minimum arise ‘between the government and others.'”

   2. In Stern v. Marshall, 564 U.S. 462 (2011), Justice Scalia joins the majority in limiting the authority of bankruptcy courts, based on public rights doctrine. Yet he chides them for a lack of purity on public rights:

“I adhere to my view . . . that—our contrary precedents notwithstanding—‘a matter of public rights . . . must at a minimum arise between the government and others.’”

“The sheer surfeit [i.e., excessive amount] of factors that the Court was required to consider in this case should arouse the suspicion that something is seriously amiss with our jurisprudence in this area.”

   3. In Wellness International v. Sharif (decided May 26, 2015), Justice Scalia is in the minority.  He joins a three-Justice dissent in declaring that an alter ego claim can be resolved by a bankruptcy court under the public rights doctrine.  In joining this dissent, Justice Scalia apparently abandons his former insistence that government-as-a-party is a “minimum” requirement of public rights doctrine.

–Gorsuch History on Public Rights Doctrine

Justice Gorsuch, on the other hand, is critical of public rights doctrine in bankruptcy contexts.

–Tenth Circuit Opinion

Here’s what Neil Gorsuch writes about public rights doctrine while serving as a Judge on the Tenth Circuit Court of Appeals (from In re Renewable Energy Development Corp., 792 F.3d 1274 (10th Cir. 2015)):

–Public rights doctrine “has something of ‘a potluck quality’ to it.”

–The “boundary between private and public rights has proven anything but easy to draw and some say it’s become only more misshapen in recent years thanks to seesawing battles between competing structuralist and functionalist schools of thought.”

–The Supreme Court has acknowledged that its treatment of public rights doctrine “has not been entirely consistent.”

–“Bankruptcy courts bear the misfortune of possessing ideal terrain for testing the limits of public rights doctrine and they have provided the site for many such battles. . . . Even today, it’s pretty hard to say what the upshot is.”

–Clerkship with Justice White

An interesting twist in the development of Neil Gorsuch’s view on public rights doctrine is this:

–At the beginning of his legal career, Neil Gorsuch served as judicial clerk for Byron White, right after White retired from the U.S. Supreme Court and sat by designation on the Tenth Circuit Court of Appeals.

–Notably, Justice White wrote the dissenting opinions in both Northern Pipeline v. Marathon and Granfinanciara v. Nordberg, where he fought pitched battles against “public rights” arguments made by plurality and majority opinions in those cases.


It seems clearly illuminated, at this early stage of Justice Gorsuch’s Supreme Court experience, that he will bear a close-resemblance to former Justice Scalia on statute construction issues but will break from Scalia on using public rights doctrine to resolve bankruptcy issues.

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