A unanimous decision handed down by the Supreme Court Wednesday quickly became the focus of Judge Neil Gorsuch’s confirmation hearings, as the new decision — Endrew F. v. Douglas County School District — undercut reasoning in an opinion written by Gorsuch in an appeals court decision in 2008.
The cases concerned the rights of disabled children under the 2004 law, Individuals with Disabilities Education Act (IDEA). In 2008, Gorsuch and two other judges on a 10th Circuit appeals court panel ruled that under the IDEA, an education agency need only provide the educational benefits for the child in question that are “merely … more than de minimis” – a finding Gorsuch defended Wednesday by pointing to a 1996 precedent in the 10th Circuit.
But on Wednesday, the Supreme Court said in an opinion written by Chief Justice John Roberts that the standard under the IDEA, is “markedly more demanding than the ‘merely more than de minimis’ test applied by the Tenth Circuit.”
The new opinion was first brought up by Sen. Dick Durbin (D-IL), less than two hours after it was handed down. Gorsuch said he only had seen the opinion briefly on his way to the bathroom in the five-minute break preceding Durbin’s question period.
“The fact of the matter is I was bound by circuit precedent, and so was the panel of my court, and had been bound for about 10 years by the standard in Urban v. Jefferson County,” Gorsuch said, referring to the 1996 precedent-setting decision.
Durbin continued pressing Grouch, focusing on his 2008 opinion’s inclusion of the word “merely,” which was not in the 1996 precedent. Gorsuch responded that his opinion was unanimous and that one of judges on the panel was a Democratic-appointee.
Sen. John Cornyn (R-TX), who came next in the questioning, rushed to Gorsuch’s defense by reminding the judge that his 2008 decision was appealed to the Supreme Court and the Supreme Court opted not to take up the case.
“If somebody is going to try to characterize your entire judicial career based on the decisions in these handful of cases, when the Supreme Court of the United States has found no fault with them, and has basically deferred to the judgment of the Tenth Circuit and your decision, it strikes me as this is kind of an indictment of the whole federal judicial system,” Cornyn said.