Seven of the eight current Supreme Court justices joined the highest court after holding a seat on an appeals court. To show how nominee Neil Gorsuch’s experience measures up, The Washington Post compared how often the judges published precedent-setting opinions on topics at the appeals level with how frequently cases on the same topics are heard at the highest court. Gorsuch’s tenure on the U.S. Court of Appeals for the 10th Circuit reveals how relevant his decade of experience on the bench really is for the topics the Supreme Court tackles most often.

Relative exposure to frequent Supreme Court legal topics

Appointed by:

a Democrat

a Republican

John G.

Roberts Jr.

D.C. Circuit,

two years

Less

exposure

Clarence

Thomas

D.C. Circuit,

one year

Ruth Bader

Ginsburg

D.C. Circuit,

13 years

Nominee

Neil

Gorsuch

10th Circuit,

10 years

About

the same

Sonia Sotomayor*

2nd Circuit, 11 years

Stephen

Breyer

1st Circuit,

14 years

More

exposure

Samuel A. Alito Jr.

3rd Circuit, 16 years

Anthony M.

Kennedy

9th Circuit,

13 years

* Before serving on the U.S. Court of Appeals for the Second Circuit, Sotomayor was a judge on the District Court for the Southern District of New York for six years. This graphic only analyzes her appeals court experience.

Note: The eighth sitting justice, Elena Kagan, did not serve as a judge before her appointment to the court. She was solicitor general for the Obama administration.

Appointed by a Democrat

Appointed by a Republican

Chief Justice

John G. Roberts Jr.

D.C. Circuit, two years

Never wrote significant

opinions on

some topics

Clarence Thomas

D.C. Circuit, one year

Ruth Bader Ginsburg

D.C. Circuit, 13 years

Nominee

Neil Gorsuch

10th Circuit, 10 years

Wrote opinions on a topic about as often as the Supreme Court hears cases on a topic

Sonia Sotomayor*

2nd Circuit, 11 years

Stephen G.

Breyer

1st Circuit,

14 years

Samuel A. Alito Jr.

3rd Circuit, 16 years

Wrote up to twice as often on some topics

Anthony M. Kennedy

9th Circuit, 13 years

* Before serving on the U.S. Court of Appeals for the Second Circuit, Sotomayor was a judge

on the District Court for the Southern District of New York for six years. This graphic only analyzes her appeals court experience.

Note: The eighth sitting justice, Elena Kagan, did not serve as a judge before her appointment to the court. She was solicitor general for the Obama administration.

Appointed by a Democrat

Appointed by a Republican

A low score means

judges never or rarely

wrote significant opinions

on the topics

A score in the middle means

judges wrote on a topic at about

the same rate that the Supreme

Court hears cases on the topic

A high score means

judges wrote relatively more significant opinions on the topics

Stephen

G. Breyer

1st Circuit

14 years

Nominee

Neil Gorsuch

10th Circuit

10 years

Chief Justice

John G.

Roberts Jr.

D.C. Circuit

Two years

Clarence

Thomas

D.C. Circuit

One year

Ruth Bader

Ginsburg

D.C. Circuit

13 years

Anthony M.

Kennedy

9th Circuit

13 years

Sonia

Sotomayor*

2nd Circuit

11 years

Samuel A.

Alito Jr.

3rd Circuit

16 years

* Before serving on the U.S. Court of Appeals for the Second Circuit, Sotomayor was a judge

on the District Court for the Southern District of New York for six years. This graphic only analyzes her appeals court experience.

Note: The eighth sitting justice, Elena Kagan, did not serve as a judge before her appointment to the court. She was solicitor general for the Obama administration.

[ Rulings offer glimpse into what kind of justice Gorsuch would be]

In his decade on the 10th Circuit, Gorsuch heard and wrote opinions on hundreds of cases that set legal precedent. Judges on appeals courts face a “vastly larger” volume of cases than those on the highest court, and there isn’t as much information available about each case, said Adam Feldman, a scholar of the court who created the blog Empirical SCOTUS blog.

Feldman provided data from the legal research service Westlaw, which categorizes judges’ published, precedent-setting opinions by topic. By comparing how frequently a judge saw one of 23 legal topics on the appeals court with how frequently the same topics reached the Supreme Court in the last three years, The Washington Post created a relative exposure index that measures how prepared a justice might be for the job.

[ Gorsuch begins his confirmation hearings with broad support among Republicans]

The distinct focus of each appeals court circuit accounts for some of the differences in each judge’s record. Generally, the 10th Circuit hears more standard cases in criminal law and private civil litigation than the D.C appeals court, which handles more administrative agency appeals. A Congressional Research Service report on Gorsuch’s experience said “the Tenth Circuit rarely has the opportunity to address certain topics, such as international law and foreign affairs, terrorism and national security, and major agency actions in the field of environmental law.”

Here’s how the cases that the nominee and the justices heard in various areas of law compare. The topics are sorted in order of how frequently they are heard on the Supreme Court.  

Less exposure

About the same

More exposure

gorsuch

alito

breyer

ginsburg

kennedy

roberts

sotomayor

thomas

Criminal

Less exposure

About the same

More exposure

gorsuch

alito

breyer

ginsburg

kennedy

roberts

sotomayor

thomas

According to the CRS report, more than 40 percent of the cases on the 10th Circuit’s docket each year involve criminal law or petitions from federal or state prisoners. Judges don’t write opinions for most of these. When he did write opinions in criminal cases, Gorsuch tended to side with the state and thus gained a reputation as a tough-on-crime judge, Feldman said.  

Criminal cases that reach the Supreme Court are typically more complex, and the justices there must decide how the Constitution sets the rules of criminal procedure. Gorsuch has ruled on these larger issues, though. In one case on the 10th Circuit, the majority of judges decided “No Trespassing” signs at a house where the defendant was staying did not prevent federal agents from knocking on the door to try to find him. Gorsuch dissented. “State officials no less than private visitors could be liable for trespass when entering without the homeowner’s consent,” Gorsuch wrote.

Less exposure

About the same

More exposure

gorsuch

alito

breyer

ginsburg

kennedy

roberts

sotomayor

thomas

Intellectual property

Less exposure

About the same

More exposure

gorsuch

alito

breyer

ginsburg

kennedy

roberts

sotomayor

thomas

Intellectual property law covers copyrights, trademarks and patents. The U.S. Court of Appeals for the Federal Circuit has jurisdiction over patent and trademark appeals, so judges on other appeals courts don’t see a lot of precedent-setting cases in this area. The copyright decisions they do hear often only apply to specific companies at the local and regional level.

Less exposure

About the same

More exposure

gorsuch

alito

breyer

ginsburg

kennedy

roberts

sotomayor

thomas

Corporate governance

Less exposure

About the same

More exposure

gorsuch

alito

breyer

ginsburg

kennedy

roberts

sotomayor

thomas

Gorsuch’s experience with corporate governance law, which deals with how companies are organized and who has major stakes in them, is a good example of his textualist approach to judicial decision-making.

Feldman said Gorsuch appears to follow the methodology taught in law school statutory interpretation classes. First, lawyers are taught to consider the Constitution; second, other statutes; and third, as a last resort, other documents that might hint at what lawmakers who wrote the law intended for it to do. “Judge Gorsuch has expressed skepticism about a jurist’s ability to discern a single legislative ‘intent,’” the CRS report said.

All this means “people shouldn’t peg him down as a strict liberal or conservative — he interprets the law as it’s written,” Feldman said.

Less exposure

About the same

More exposure

gorsuch

alito

breyer

ginsburg

kennedy

roberts

sotomayor

thomas

Taxation

Less exposure

About the same

More exposure

gorsuch

alito

breyer

ginsburg

kennedy

roberts

sotomayor

thomas

Tax law is another area where Gorsuch’s textualist approach informs his decision making. However, Feldman said the Supreme Court sees fewer tax cases now than in the 1930s, and generally only when taxes are related to larger constitutional issues.  

Less exposure

About the same

More exposure

gorsuch

alito

breyer

ginsburg

kennedy

roberts

sotomayor

thomas

Immigration

Less exposure

About the same

More exposure

gorsuch

alito

breyer

ginsburg

kennedy

roberts

sotomayor

thomas

One of Gorsuch’s immigration cases is a good lens for looking at one area of law where he differs from the sitting justices — a legal doctrine known as “Chevron deference.”

In a 1984 case called Chevron v. NRDC, the Supreme Court said that when the words of a statute are ambiguous, judges should defer to the expert opinions of the federal agencies charged with carrying out the law.

In a case involving how long an illegal immigrant named Hugo Rosario Gutierrez-Brizuela had to wait before trying to win lawful residence in the country, Gorsuch called for reconsidering this doctrine. Post reporter Robert Barnes wrote that some conservatives fear that “ Chevron deference” gives the executive branch an ability to write the law instead of simply enforcing it.

[ The doctrine sure to emerge in Gorsuch hearings]

Less exposure

About the same

More exposure

gorsuch

alito

breyer

ginsburg

kennedy

roberts

sotomayor

thomas

Environment

Less exposure

About the same

More exposure

gorsuch

alito

breyer

ginsburg

kennedy

roberts

sotomayor

thomas

Challenges to national environmental laws are usually filed directly in the D.C. Circuit Court, so most environment-related cases that Gorsuch saw on the 10th Circuit were narrow in scope.   “He’s going to face these federalism issues on the Supreme Court, where it has implications beyond just the local level,” Feldman said. The CRS report said the Supreme Court is often closely divided on environmental issues, so Gorsuch’s vote could be key.

Less exposure

About the same

More exposure

gorsuch

alito

breyer

ginsburg

kennedy

roberts

sotomayor

thomas

Products liability

Less exposure

About the same

More exposure

gorsuch

alito

breyer

ginsburg

kennedy

roberts

sotomayor

thomas

Gorsuch stands to have great influence on the court in civil liability.

One of the cases that Gorsuch listed on a Senate Judiciary Committee questionnaire as among the “the 10 most significant cases over which you presided” was a products liability suit. In that case, he upheld the lower court’s decision against a defendant who was injured by the off-label use of a medical device.

Though he has relatively less experience writing on products liability law than some of his potential Supreme Court colleagues did when they were on appeals courts, Gorsuch stands to influence how the court handles civil liability if he is confirmed. He has supported other liability decisions seen as pro-business, the CRS report said.

Post analysis of Westlaw data from Adam Feldman, Congressional Research Service

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