The Hill, by Lydia Wheeler, 04/04/18 –
Nearly one year into his tenure, Neil Gorsuch seems to be having the time of his life.
The Supreme Court’s newest justice is reveling in his role, diving into arguments with gusto and so far fulfilling the expectation that he would be a rock-ribbed conservative in the mold of his predecessor, the late Antonin Scalia.
In doing so, he’s shaken up the dynamics of the highest court in the land.
“Ideologically, he is what he seems to be, a conservative, textualist, originalist, but he’s approached the job differently,” said Ian Samuel, a Climenko fellow and lecturer on law at Harvard Law School, who co-hosts the “First Mondays” podcast about the Supreme Court.
Samuel noted that Gorsuch decided not to join what is known as the cert pool, where the justices share law clerks to divvy up the work of reviewing petitions to the court.
The only other member of the court who is not part of the arrangement is Justice Samuel Alito, according to The New York Times.
If a justice chooses not to participate, their law clerks review all of the roughly 7,000 to 8,000 requests that come in.
“It’s a tiny, but telling example of the fact [that] from day one, [Gorsuch] decided, ‘I’m going to do the job my way. No disrespect intended to anyone else, but I’m not going to ease in as if I’m some rookie,’ ” Samuel said.
Gorsuch’s take-charge style was evident from the beginning.
During his first oral argument last year, Gorsuch asked more questions than any of his colleagues had on their first day – 22 of them, to be exact.
“I’ve known him for over a decade and this is how he’s always been. He’s just a trial lawyer who doesn’t do things half way,” said Jamil Jaffer, a former clerk for Gorsuch who founded the National Security Institute at George Mason University’s Antonin Scalia Law School.
“He loves getting into the meat of an argument which, at the end of the day, is what being a good trial lawyer and good judge is all about.”
While conservatives are thrilled with Gorsuch’s performance so far, he has plenty of detractors on the left – including those who say the justice has a tendency to overexplain in his opinions. His writing style spawned a mocking hashtag on Twitter, #GorsuchStyle.
Daniel Epps, an associate professor of law at the Washington University School of Law in St. Louis, coined the phrase and invited others to rewrite classic lines from other Supreme Court opinions in Gorsuch prose after the new justice opened his first dissenting opinion this term with a quote from the English writer and philosopher G.K. Chesterton.
“Chesterton reminds us not to clear away a fence just because we cannot see its point. Even if a fence doesn’t seem to have a reason, sometimes all that means is we need to look more carefully for the reason it was built in the first place,” Gorsuch wrote.
Jaffer scoffed at the criticism of Gorsuch’s opinions.
“You know they have nothing substantive to talk about when they are taking weak potshots at his writing style,” he said.
“That’s just how Justice Gorsuch writes: He wants to make the law accessible to a lay audience, which is something we ought credit, not criticize. Frankly, it strikes me as some law professors being a bit elitist.”
Tim Meyer, a professor of law at Vanderbilt University Law School who also clerked for Gorsuch and testified on his behalf during his confirmation hearing, noted the criticism on Twitter is from appellate lawyers – not Gorsuch’s target audience.
To his law clerks, Meyer said, Gorsuch always preached the idea that the actual litigants should be able to pick up the opinion and understand why they won or lost.
“I think it’s a breath of fresh air to have someone on the bench who is trying to do something stylistically that’s more accessible,” Meyer said.
Other court-watchers have accused Gorsuch of using a bossy tone on the bench. Jeffrey Toobin of The New Yorker wrote in September that Gorsuch had at times instructed his colleagues how to do their jobs.
“If a statute needs repair, there’s a constitutionally prescribed way to do it. It’s called legislation,” Gorsuch wrote in one dissent last term.
Linda Greenhouse of The New York Times was more scathing, characterizing Gorsuch as the boy on the playground who snatches the ball out of turn.
“He is in his colleagues’ faces pointing out the error of their ways, his snarky tone oozing disrespect toward those who might, just might, know what they are talking about,” she wrote in an opinion piece in July.
Many wondered whether the court’s leading liberal, Justice Ruth Bader Ginsburg, was indicating a dislike for Gorsuch in February when she said she respects all of her colleagues and genuinely likes most of them.
Supporters of Gorsuch, however, dismissed talk of a feud with Ginsburg as unfounded speculation.
“Even though obviously, ideologically, those two agree less than most other justices, it’s not a reason to assume that was the person she was referring to,” said Carrie Severino, chief counsel and policy director of the conservative Judicial Crisis Network, which spent $10 million on a national campaign to get Gorsuch confirmed.
Some of the criticism of Gorsuch is fueled by the circumstances of his ascension to the bench. Republicans refused to hold a hearing or vote on former President Obama’s nominee to the court, Merrick Garland, after Scalia’s death in 2016. Many on the left think Gorsuch is in a stolen seat.
“I’ve been guilty of this, too. I think people are frustrated by his circumstances of joining the court,” said Epps, who co-hosts the “First Mondays” podcast with Samuel. “I sometimes feel sorry for the guy. He can’t really catch a break.”
“Anything he does that’s a little off or, you know, a misstep in any way gets magnified,” Epps said. “I maybe contributed to this with GorsuchStyle.”
But Gorsuch has been the subject of controversy several times since his confirmation.
He took heat for giving a speech in September at the University of Louisville, Senate Majority Leader Mitch McConnell’s (R-Ky.) alma mater, and was criticized for appearing at an event at the Trump International Hotel in D.C. Foreign payments to President Trump’s hotel are the subject of litigation that could reach the Supreme Court.
Even Gorsuch’s social outings have come under the microscope.
In January, he dined with Republican senators and other Washington officials at the home of Senate Majority Whip John Cornyn (R-Texas) – a common occurrence for the justices, who often strike up friendships with lawmakers and dine among Washington power players.
But critics seized on the dinner anyway, saying it raised questions about Gorsuch’s ability to be independent from the Republican Party.
Epps said the criticism could have a lasting impact on Gorsuch as a judge.
“He’s getting so much flak and such little benefit of the doubt it could make him hunker down ideologically,” he said.
“There’s some theory that’s what has happened with [Justice Clarence] Thomas. … Perhaps he felt very criticized by people on the left and became even more conservative. I worry about that.”