Washington Spotlight: How Gorsuch could impact retail

This week, the Senate Judiciary Committee considered the nomination of Judge Neil Gorsuch to the United States Supreme Court. Since vacancies on the bench are rare and the political stakes so high, few spectacles in Washington D.C. invite this level of drama. He was confirmed by the committee but when his nomination eventually goes to the floor of the Senate for a vote, the real fun will begin. (See “nuclear option.”) Lost in the hype is what his eventual seat on the court will mean to retail operators.

Gorsuch is currently a federal appeals court judge in Colorado, but that particular circuit doesn’t attract the kind of high-level business law cases where we can get a real read on his tendencies. However, there was a recent online sales tax case that is of interest to retail operators. Colorado passed a law in 2010 that forced out-of-state retailers to report to the state and the consumer, the consumer’s obligation to remit sales taxes regardless of whether the retailer had physical presence in the state.

During deliberations, Gorsuch referred to the overarching Quill decision (on which current law is based) as an “analytical oddity” which will “wash away with the sands of time.” Additionally, Gorsuch clerked for Justice Anthony Kennedy who has overtly invited challenges to Quill. What’s most important is, there may be an additional set of friendly ears on the bench when it comes to online sales taxes.

For other areas important to the industry, particularly labor policy issues, the results are too mixed to demonstrate an employer bias one way or the other. But Gorsuch has made no secret of his admiration for Antonin Scalia and he is being looked at as a natural successor. One of the first opportunities he may get to show similarities are potential cases dealing with the constitutionality of compulsory union dues. Justices deadlocked 4-4 when the issue reached the Court previously. Look for Gorsuch to be the tiebreaker on similar votes going forward.


Joe Kefauver is managing partner of Align Public Strategies, a full-service public affairs and creative firm that helps corporate brands, governments and nonprofits navigate the outside world and inform their internal decision-making. Align specializes in service sector industries.

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