This is the property of the Daily Journal Corporation and fully protected by copyright. It is made available only to Daily Journal subscribers for personal or collaborative purposes and may not be distributed, reproduced, modified, stored or transferred without written permission. Please click "Reprint" to order presentation-ready copies to distribute to clients or use in commercial marketing materials or for permission to post on a website. and copyright (showing year of publication) at the bottom.

90 days of Neil

By Julie A. Werner-Simon Ben Armistead | Jul. 10, 2017


U.S. Supreme Court, Government

Jul. 10, 2017

90 days of Neil

What have we learned about Justice Neil Gorsuch from his first 90 days on the bench? Hint: There are few surprises.

0710 ldj werner simon
The justices of the Supreme Court sit for a group photo, June 1. (New York Times News Service)

At the end of January, in the Rose Garden of the White House, President Donald Trump introduced us to 10th Circuit Judge Neil Gorsuch, his nominee to fill Justice Antonin Scalia's seat. Over the e-waves, information appeared: Collegial; brilliant; born Catholic but worships at Episcopal church; wrote a book in 2006 against assisted suicide by "private persons"; married his wife Marie Louise, a Brit, whom he met on a blind date while both were students at Oxford; loves the outdoors, and his daughters raise chickens, and his wife rides horses.

Many rushed to read up on Gorsuch's opinions. Neil Gorsuch served on the 10th U.S. Circuit Court of Appeals for over a decade and he had not yet opined on abortion or gun control rights, but had sided with Hobby Lobby's religious freedom argument as justifying the company's decision not to provide female employees with contraception coverage, in contravention of the requirements of the Affordable Care Act. Hobby Lobby Stores, Inc. v. Sebelius (10th Cir. 2013) was later affirmed by the Supreme Court. Gorsuch was part of the 10th Circuit majority which held that an employer's religious freedom trumped its employees' access to aspects of health care, but he did so in a concurring opinion stating that he would have allowed the company's owners to bring their own religious-freedom claims against the contraception mandate rather than permitting the challenge in the name of the company itself. And when the 10th Circuit ruled for Planned Parenthood after the state of Utah cut off the organization's funding, Gorsuch dissented from a denial of rehearing en banc. Planned Parenthood Ass'n of Utah v. Herbert (10th Cir. 2016).

But then again, Gorsuch was the sole dissenter when his 10th Circuit colleagues upheld a middle schooler's arrest by school police for the offense of jokingly burping in a gym class. A.M. v. Holmes (10th Cir. 2016). Gorsuch lauded his colleagues for their strict construction of the relevant provision of New Mexico law regarding culprits who disrupt the educational instruction. Yet, he vociferously dissented, asserting that the statute did not permit the criminalization "of noises or diversion that merely disturb the peace or good order of the classroom."

Prior to Gorsuch's confirmation, FiveThirtyEight.com published an analysis of some 900 of the 2,700 10th Circuit cases in which Judge Gorsuch participated. The analysis focused on immigration and employment decisions, reasoning that such topics would be "useful in examining Gorsuch's ideology" because "many academic studies have found that liberal and conservative circuit judges vote differently" on these subjects. The article concluded that Gorsuch looked "relatively centrist in these areas." Gorsuch "appears to be roughly in the middle of [his court's] ideological sphere and one of the more liberal of the Republican appointees in the Tenth Circuit."

For this reason, I continued to keep an open mind.

On day one of his two-day confirmation hearing in March, Gorsuch told us that he admired judges who work hard and exhibit "courage, collegiality, independence and integrity." He mentioned God several times, including him as a childhood heroe, alongside sports figures and a Supreme Court justice from the 60s (Byron White). Although Gorsuch related that it was his "great fortune" to clerk for Justice Anthony Kennedy, who showed Gorsuch the "judges can disagree without being disagreeable," he called Scalia his mentor. Scalia, a fellow fly-fishing aficionado, was Gorsuch's ideal jurist. Citing Scalia, Gorsuch told us that a judge's job was to "follow the words that are in the law" and not replace them with those we want. That sometimes the answers were not "the one's we personally prefer." He told us little of his ideology, but he stated that judges are not "politicians in robes" and that if he was ever to be that, he would "hang it up."

Gorsuch's home-spun stories of his love for his family, the tenacity of his mother (the first female lawyer in her law school class) and his pioneer grandmother, all painted a portrait of someone who just might "show courage" as our newest justice. While there was no way that Justice Gorsuch would be a progressive's dream, many remained hopeful that Gorsuch's "companionable," folksy confirmation performance raised the possibility that he would surprise us. Perhaps he would not be so "literal" and understand -- as constitutional historian Carol Berkin has espoused -- that when interpreting what has gone before, we do so "in the light of what fills our daily lives today."

Some of us hoped that, by sitting in Colorado, Gorsuch would have realized that, whether it be biblical interpretation or constitutional interpretation, the reader makes reasoned "judgment" calls about what was meant by the drafter-creators. None of us were alive in 1787 for our Constitution's debut, let alone when the books of the Bible were written. We guess, we deduce, and we interpret those words -- but we really do not know. And had we been there, we would have noted that there were very different interpretations of what the Framers agreed upon. And many of the Framers reflected later in life slightly different recollections about what they meant "at the time" of drafting. Maybe, I thought, Gorsuch would see that "words" are subject to multiple interpretations and that, when one interprets, one does so from one's "own seat on the couch."

But alas, as Gorsuch reaches 90 days into his Supreme Court tenure, there are few surprises. He told us who he was at his confirmation hearings -- a literalist. He told us in a speech after Scalia's death that "lawmakers may appeal to the public and personal morality but judges never should." The newest originalist on the Supreme Court has shown who he is: a Spock and Justice Clarence Thomas' close cohort. Justice Gorsuch is as the president promised he would be.

Trump promised that his picks would come from recommendations from conservative groups like the Federalist Society and the Heritage Foundation. And his top contenders all fit the bill: (i) Gorsuch, a 49-year-old Harvard JD, with a doctorate from Oxford, graced with telegenic silver hair and square jaw, from Colorado; (ii) Thomas Hardiman, a then-50-year-old Georgetown law graduate and gun advocate from the 3rd Circuit; and (iii) William H. Pryor Jr., a then-54-year-old jurist on the 11th Circuit, and former Jeff Sessions protégée. Pryor, the most "controversial conservative" was on record for calling Roe v. Wade and Miranda v. Arizona "abominations." (This was nothing new for Pryor, who, while attorney general of Alabama, declared that states should still be free to prohibit male sodomy.) The three white, male finalists were deemed by all news outlets as "very, very conservative" on issues spanning constitutional interpretation, birth control and religious groups' freedoms.

Justice Gorsuch hopped onto the 2016-2017 term near its end, with only 13 oral arguments in which he could sit remaining. On day one, on a census worker's case against his former employer, the Merit Systems Protection Board, the rookie justice "showed his stuff." Waiting only 11 minutes into argument, after questions from four other justices, he dove in, taking over, and even apologizing for taking so much time with one of the litigants. Gorsuch, as reported by Adam Feldman of Empirical Scotus, spoke the most of all but two justices (John Roberts and Elena Kagan) on that first case of the day. Gorsuch "clocked in" with 463 words uttered in his first case as associate justice. And, on the sixth oral argument of that week, the Trinity playground paving case, Gorsuch asked "a high ratio of questions (to statements)." He bested Judge Sonia Sotomayor: She asked 15 questions on her first outing on the bench; Gorsuch asked 22 questions on his.

Now, with June behind us, Gorsuch has shown himself most tellingly in his dissents and concurring opinions, where he has been joined at the hip with Justice Thomas. Gorsuch heard only two weeks of argument, comprising 13 cases (the 14th was consolidated), and a few of the term's cases decided without argument. Gorsuch and Thomas were together on eight separate decisions. The justices dissented in Perry v. Merit Systems Protection Board, in which the court held, 7-to-2, that a fired census employee could sue in federal district court without first seeking review of the adverse board decision. Gorsuch chastised the majority for failing to "appl[y] the statute as written" (the very rule that Justice Samuel Alito in oral argument had said could only be understood by a lawyer and sarcastically stated that the rule had been written by someone who liked to pull wings off a fly).

In Pavan v. Smith (heard without argument), two same-sex married couples having conceived children from artificial insemination, sought to list both parents' names on the children's birth certificates (as is the practice with heterosexual couples). The court ruled per curiam in favor of the same-sex parents. Three justices -- Gorsuch writing, joined by Alito and Thomas -- dissented.

In another case, Gorsuch joined with both the majority and Alito's and Thomas' concurring opinions upholding a murder conviction from Boston. In Weaver v. Massachusetts, the defendant's lawyer failed to object to the closing of the courtroom to the public during void dire. The majority held that the closure did not significantly impact the proceeding, while Gorsuch and Thomas posited that the Supreme Court should have decided the broader question of whether "the Sixth Amendment right to a public trial extends to jury selection."

In a unanimous decision limiting the federal government's right to "de-naturalize" a citizen for making false statements during the naturalization process, Gorsuch and Thomas stated that, while the majority's decision was correct, the court should have relied upon the words in the statute itself.

But it was Gorsuch's first act as a justice that showed who he is: Gorsuch was the fifth vote permitting Arkansas to execute Ledell Lee, a death row inmate for decades, who sought a DNA test of crime scene evidence, had claimed his lawyer was drunk during court, and that the trial judge was not neutral in that he favored the prosecutor (with whom the judge was having an affair and later married). Recall that Arkansas had little more than a week before one of the lethal injection drugs used to execute inmates was due to expire. Arkansas, which had not held an execution in 12 years, decided to execute eight death row inmates in less than a two week period. Before Gorsuch was sworn in on April 10, four of the eight men had received stays from the Supreme Court. Lee appealed to the Supreme Court and Justice Gorsuch cast the deciding vote. Ledell Lee was executed by Arkansas on April 21.

These cases suggest where Justice Gorsuch stands, and gives me pause over a few of the cases selected for the next term's roster. It is not hard to project just how Gorsuch will rule in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, which is now on the October docket. The baker was found to be in violation of Colorado's antidiscrimination laws for refusing to bake a cake a cake for a gay couple's wedding. The baker claims that his cakes are "art" and the state cannot force him to create a "morally objectionable message."

It is not much of a leap to surmise that this justice will rule with the administration on at least one of the two travel ban cases before the court, Trump v. International Refugees and Trump v. Hawaii. I can see our newest justice, the literalist, giving big thumbs up to Wisconsin's voter redistricting plan (Gill v. Whitford), and I wager that he will find that a defendant's guilty plea waives any constitutional challenge on appeal (Class v. United States). I predict we will see more of the "emerging fraternal twin block" on the court of Thomas and Gorsuch.

Justice Thomas, our "silent justice," found his voice and spoke for the first time in a decade at oral argument in February 2016, two weeks after Justice Scalia died. He asked questions of government counsel about misdemeanor domestic violence convictions suspending an individual's fundamental right to possess a firearm. Thomas has not spoken at oral argument since last year, and he may not have to again. Neil Gorsuch appears to be Thomas' voice. Gorsuch says enough at argument, and in their dissents, that Thomas can revert to silent reflection, while Gorsuch occupies the "rookie seat" at the Supreme Court conference table, the chair closest to the door. Protocol dictates that it is the rookie justice who must leave the table and answer the door. With little wonder left on how he will make decisions, I now wonder just how long Justice Neil Gorsuch will have that seat.

#328660

Ben Armistead

For reprint rights:

Email jeremy@reprintpros.com for prices.
Direct dial: 949-702-5390

If you would like to purchase a copy of your Daily Journal photo, call (213) 229-5558.

Send a letter to the editor:

Email: letters@dailyjournal.com