‘Occupy’ Law Professor’s Empty Attack on Gorsuch—Part 1

by Ed Whelan

It’s a good thing that Fordham law professor Zephyr Teachout’s official bio touts her as an “immensely talented and creative scholar”—because you sure wouldn’t know it from her Washington Post (online only?) hit piece on Supreme Court nominee Neil Gorsuch. Or does it take immense talent to string together a series of boilerplate attacks? And is it creative to just make things up out of whole cloth?

Teachout, an Occupy Wall Street supporter who recently ran for Congress, and lost, as a Bernie Sanders favorite, tries to play the leftist populist card against Gorsuch. (Her piece was initially titled “Neil Gorsuch always sides with big business, big donors and big bosses,” but the “always” has now been dropped, and a more tentative subtitle has been added.) Teachout’s piece is replete with sweeping claims:

Gorsuch’s record on the bench reveals a man with a strong top-down streak, a preference for concentrated wealth and power. He has consistently been the friend of big business and monopolies at the expense of competition and open markets, and the friend of big donors at the expense of small donors. In disputes between the employee and employer, he sides with the boss.

She rails about what a “Gorsuch economy” and a “Gorsuch democracy” will look like, and she claims that Gorsuch’s views on antitrust and campaign finance “reveal a judge who will further open the way for a few wealthy people to rob the American people of their basic freedoms and properties, and to subvert our democracy once and for all.”

Teachout barely tries to provide any actual evidence for her sweeping claims. Let’s look at her feeble case against Gorsuch:

1. After a longwinded misframing of antitrust law (which I will address in my Part 2 post), Teachout finally cites two of Gorsuch’s opinions in which, she complains, he “found no antitrust violations despite substantial evidence that a dominant player used its power to push out rivals.”

In Novell v. Microsoft, Gorsuch wrote a unanimous panel opinion that held that the district judge properly ruled that Microsoft had no duty to share its intellectual property with Novell. So that’s four judges on one side, and Teachout on the other. Plus, the Supreme Court denied Novell’s petition for certiorari, and the Obama administration did not support that petition.

Gorsuch explained that it’s rare that a business’s unilateral refusal to share its property with its rival violates the antitrust laws and that Novell had presented no evidence from which a jury could find that one of those rare situations existed. Teachout claims that Gorsuch, “a strict follower of the formalistic theories of Chicago School economics,” “elevated the writing of conservative academics above the congressional intent underpinning antitrust law.” But Gorsuch’s opinion, far from relying on the “writing of conservative academics,” extensively discusses and applies Supreme Court precedents. His opinion doesn’t include a single mention of Bork or Posner or (unless I missed it) any other Chicago School academic. He instead has a dozen or so secondary cites to the hornbook written by Phillip Areeda of the rival (and putatively more moderate) Harvard School.

The second Gorsuch opinion that Teachout complains of is Four Corners Nephrology Associates v. Mercy Medical Center. Teachout can’t even muster a specific sentence about the opinion, and no wonder: Gorsuch’s unanimous opinion was joined by Robert Henry and William Holloway, both Democratic appointees.

(Teachout doesn’t even link to the two opinions she is criticizing. Her links instead are only news to articles about them, one of which isn’t even publicly available.)

2. Teachout likewise provides no support for her claim that on campaign finance Gorsuch is “the friend of big donors at the expense of small donors.” Teachout repeats the Left’s false talking point that in his concurrence in Riddle v. Hickenlooper Gorsuch “suggested that donating to a politician is a ‘fundamental’ right that ought to be afforded the highest form of constitutional protection.” She further frets that that supposed suggestion “matters because Gorsuch could vote to strike down the existing limits of $2,700 per person for a federal candidate.” But, as I’ve explained, far from making any “suggest[ion]” of his own, Gorsuch was simply highlighting the confusion that he saw in the Supreme Court’s precedents. Further, he cited with approval the federal “model” of regulating campaign contributions, so it’s beyond strange to read his opinion as evidence that he would strike down the federal limits.

That’s it. There’s nothing else in Gorsuch’s record that Teachout cites in support of her outlandish characterizations.

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