Minutes after Donald Trump nominated Neil M. Gorsuch to the the next Supreme Court Justice, a surprising headline appeared in the New York Times: “Why Liberals Should Back Neil Gorsuch.”
The article was written by Neal Katyal, who served as a solicitor general in the Obama administration. He wrote that liberals should support Gorsuch because he “brings a sense of fairness and decency to the job” and has a good “temperament.”
While Katyal mentioned in the essay his work for the Obama administration, he failed to disclose his current line of work: representing large corporate interests in front of the Supreme Court. Katyal has at least two cases pending before the Supreme Court that would likely benefit from the confirmation of Gorsuch, whose rulings have consistently favored corporations over individuals.
Katyal represents Bristol-Myers Squibb in the case of Bristol-Myers Squibb v. Superior Court. On January 19, the Supreme Court agreed to hear the case (a decision known as granting cert). In the underlying case, the plaintiffs suffered severe side effects from the drug Plavix, which is intended to prevent blood clots. Katyal is representing Bristol-Myers Squibb in their efforts to limit the plaintiffs’ ability to sue in California and limit the company’s liability.
In November, Katyal presented arguments before the Supreme Court on behalf of Wells Fargo in the case of Wells Fargo v. Miami. In that case, the city of Miami is arguing that Wells Fargo was “discriminating against African Americans and Latinos when issuing them mortgages, by making predatory loans that were more likely to lead to foreclosures.” Katyal is representing Well Fargo in trying to limit their liability, arguing that these discriminatory policies did not directly cause the city harm, a legal concept known as “proximate cause.”
Gorsuch would likely be amenable to Katyal’s clients in these pending cases. In her statement opposing Gorsuch’s nomination, Senator Elizabeth Warren wrote that Gorsuch “has twisted himself into a pretzel to make sure the rules favor giant companies over workers and individual Americans.” Warren noted that Gorsuch “has sided with employers who deny wages, improperly fire workers, or retaliate against whistleblowers for misconduct.”
Although the Supreme Court would likely initially consider both cases prior to Gorsuch’s confirmation, if either case looked like it would end in a 4–4 tie — not implausible given the current ideological makeup of the court — the court could order a rehearing and have Gorsuch participate in the decision.
None of this, of course, should prevent Katyal — a widely respected member of the legal community — from having an opinion on Gorsuch. But his presentation of himself as an Obama administration official and a liberal, without disclosing his current corporate clients, is troubling.
Emails to Katyal requesting comment were not immediately returned.