Gorsuch’s ‘Mainstream’ Measurement
Supporters of Judge Neil Gorsuch’s Supreme Court nomination describe him as a “mainstream judge.” Their evidence: He has sided nearly 99 percent of the time with the majority on the 10th U.S. Circuit Court of Appeals, and 97 percent of the court’s rulings were unanimous.
But those statistics are not unusual and provide no insight into how Gorsuch may rule as a justice on the high court.
The “vast majority” of federal appeals court cases are “decided without dissent,” and the 10th Circuit “is no exception to this general trend,” the nonpartisan Congressional Research Service said in an analysis of Gorsuch’s record.
The CRS report said 2.54 percent of the opinions issued by the 10th Circuit from 1998 to 2009 included a written dissent, citing a 2010 paper in the Loyola of Los Angeles Law Review that reviewed the opinions of six circuit courts. That paper found the 3rd Circuit (2.33 percent) and the 5th Circuit (1.14 percent) had lower dissent rates than the 10th Circuit.
As for Gorsuch, the CRS calculated the percentage of written dissents among seven judges on the 10th Circuit, and found that Gorsuch “displayed relatively more willingness to dissent from others’ majority opinions than some colleagues.” Gorsuch’s rate of dissent of 1.6 percent “places him in the middle” among his colleagues.
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