Some justices ascend to the Supreme Court quietly, deferring to their elders and biding time before venturing out too far to offer their own views of the law.
Justice Neil M. Gorsuch, on the other hand, appears to have been shot from a cannon.
At his inaugural oral argument in April 2017, President Trump’s first choice for the Supreme Court asked 22 questions. In the term just completed, Gorsuch wrote more dissents than any other justice and typed out a whopping 337 pages of opinions. Again, more than anyone else.
Along the way, he has established himself as one of the court’s most conservative justices and a reliable vote for Trump initiatives that have reached the Supreme Court — the travel ban on those from mostly-Muslim countries, adding a citizenship question to the census form and allowing a ban on transgender service in the military to go into effect. He has shown a willingness to overturn precedent and an impatience with more reticent colleagues.
More than anything, he has displayed a supreme confidence that his originalist approach to the law is the most disciplined and principled way to go about his job as a justice.
“I’m all in, and I wanted to explain that,” Gorsuch said in a recent interview in his chambers. He was referring to “A Republic, If You Can Keep It,” a book he has written that goes on sale Tuesday. The title is from Benjamin Franklin’s reported comment when asked what kind of government the Founding Fathers would propose.
It is a collection of essays, speeches, past opinions and ruminations on civics, civility and the art of judging.
“I decided I wanted to say something about the Constitution, the separation of powers and the judge’s role in it,” Gorsuch said in the interview. At his confirmation in 2017, he said, “I was surprised by just some basic misunderstandings about the separation of powers.”
(In the interview, which happened to fall on his 52nd birthday, Gorsuch was unwilling to discuss the way the Senate goes about evaluating Supreme Court nominees. “You’re not going to make me relive the confirmation process are you?” he said in response to a question. “On my birthday?”)
Those who follow the court, on the left and the right, do not need a book to evaluate how Gorsuch has filled his role as the replacement for Justice Antonin Scalia, who died in 2016.
“He’s everything conservatives hoped for and liberals feared,” said Erwin Chemerinsky, the liberal dean of the law school at the University of California at Berkeley. He recently wrote a detailed evaluation of Gorsuch’s jurisprudence for ABA Journal.
Gregory Garre, who was solicitor general under President George W. Bush, said that Gorsuch is much like a concentrated version of Scalia, right down to his “maverick” tendencies to join the court’s liberals on some criminal justice issues.
“In a 2016 tribute to Justice Scalia, then-Judge Gorsuch described Justice Scalia as ‘docile in private life but a ferocious fighter when at work,’ ” Garre said. “Much the same could be said about Justice Gorsuch.”
One difference, according to Garre: “Arguably, he’s been more open to rethinking long-standing constitutional doctrine. . . . In this regard, he’s closer to Justice [Clarence] Thomas, who, even when Justice Scalia was on the court, often found himself writing alone on such matters.”
Respecting the court’s precedents — “stare decisis,” it is called — is a pledge that senators of both parties try to extract from Supreme Court nominees. Republicans want to preserve rulings respecting the Second Amendment; Democrats worry about eroding the right to abortion or the protection of same-sex marriage.
According to Adam Feldman, who analyzes the court for his website Empirical SCOTUS, Gorsuch has voted to overturn or suggested revisiting 11 of the court’s precedents in his two terms on the court.
Gorsuch, in the interview, denied that made him much different from any other justice.
“I think we’d all agree that precedent is very important,” Gorsuch said. “But it isn’t inexorable.”
As he writes in the book, Gorsuch said a justice must look at how a decision comports with the “original meaning” of the Constitution, how well reasoned the decision was at the time, how long it has been relied upon, how many other justices have questioned it.
“Goodness gracious, this court is as modest and as conservative as any in our history” about overturning precedent, Gorsuch said.
But if a litigant requests the court consider overturning a precedent, “I have to listen,” he said. “And once in a while I’m going to be persuaded. It’s not going to be that often. But it’s going to happen once in a while.”
Gorsuch voted with fellow conservatives to overturn a 40-year-old precedent involving the way public employee unions can collect collective-bargaining fees. And he advocated, along with Justice Ruth Bader Ginsburg, uprooting a precedent that allows local and federal prosecution for the same offense.
In a case last term that allowed a 40-foot cross to stand on public land as a memorial to World War I veterans, Gorsuch and Thomas went further than the majority to advocate finally ditching the test the court has set for deciding when a public display constitutes government endorsement of religion. Along with it, he said, should go the ability of “offended observers” to challenge such displays in court.
There are few references to current controversies in the book, and in the interview Gorsuch was adamant about not commenting on cases that could come before the court or opining about the man who nominated him.
For instance, in the book and in the interview, Gorsuch lavishly praised federal judges who “believe the Constitution is the greatest charter of human liberty that history’s ever known. And they believe in this country, they believe it’s more important than their own financial feathering of their nests.”
But asked about Trump’s frequent charge of bias against judges who have ruled against him or his policies, Gorsuch balked. “They can do their thing in the political arena. I’m a judge. And I’m going to stick to my lane,” the justice said. “You asked about what I think of judges in this country. I already talked about that, all right? Insert that answer here.”
Far from the candid coming-of-age memoirs of Thomas and Justice Sonia Sotomayor, Gorsuch’s book has chapters such as “Our Constitution and Its Separated Powers” and “The Judge’s Tools.” It is in the latter that he defends his view of originalism — “the Constitution should be read in our time the same way it was read when adopted” — and the textualist view of statutory interpretation.
Such a practice eschews trying to divine the legislature’s intent in passing a law and “tasks judges with discerning (only) what an ordinary English speaker familiar with the law’s usages would have understood the statutory text to mean at the time of its enactment.”
Such pronouncements fit in a book trying to explain how a judge works. But when Gorsuch first joined the court, they seemed to grate on his more experienced colleagues when he extolled them at oral argument. More than one issued a rebuke.
But the court has a way of coming together. “This is a group of people who respect, admire, cherish one another, I think, on a daily basis,” Gorsuch said in the interview. “It’s a very special little place.”
Sotomayor, Gorsuch’s liberal seatmate when the court hears oral arguments, has described him as a “lovely” person with whom she has decided to agreeably disagree. Ginsburg, one of those who seemed put off early on by the new justice, now tells audiences that she assigned two majority opinions to Gorsuch in the past term when he sided with the court’s liberals.
Ginsburg, famous for her octogenarian workouts, also says Gorsuch is probably the court’s fittest justice: He often makes an hour-and-a-quarter commute to work — each way — on his bicycle.
Despite their lifetime appointments, justices share a sense of fleeting fame. That is probably how it should be, Gorsuch said. But his worry is that Americans do not understand the structure of government and its institutions.
“Only about a third of Americans can identify the three branches,” Gorsuch said. “Another third can only name one branch of government. Ten percent thinks Judy Sheindlin serves on the United States Supreme Court. Judge Judy!”
He added, “I’ve got great respect for her, but she is not one of my colleagues.”
WASHINGTON—President Trump is expected to sign an executive action regarding a citizenship question on the 2020 U.S. census, according to administration officials, a move that could prompt immediate challenges in court.
The president is expected to lay out his plan in a news conference in the White House Rose Garden Thursday afternoon.
The Trump administration has been considering several options to add such a question to the census in the wake of a Supreme Court decision that stymied its push to do so. Mr. Trump said last week the White House was working on a possible executive order.
“An executive order is the fastest way he can do something,” the administration official said Thursday.
Administration officials, who said the situation remained fluid Thursday morning, provided conflicting information about what the president planned to announce.
Congressional Democrats have already indicated they would oppose such a move. Sens. Jack Reed (D., R.I.) and Brian Schatz (D., Hawaii) wrote in a letter to Attorney General William Barr and Commerce Secretary Wilbur Ross on Tuesday asking that they “immediately cease consideration of an executive order or any other means of adding a citizenship question.”
House Speaker Nancy Pelosi (D., Calif.) said Thursday the House would vote next week to hold Attorney General William Barr and Commerce Secretary Wilbur Ross in contempt for ignoring a congressional subpoena seeking information about the citizenship-question effort. Mr. Trump invoked executive privilege over documents on how the question was added to the census after they were requested..
The news conference will be the latest chapter in a monthslong saga over the administration’s efforts to add such a question to the census.
The Supreme Court in a 5-4 ruling last month blocked the citizenship question on procedural grounds, with Chief Justice John Roberts writing that the evidence that had emerged on Commerce Secretary Wilbur Ross’s decision-making process “tells a story that does not match the explanation the secretary gave.”
The court’s decision said the Trump administration had the authority to ask about citizenship on the census—if it had valid reasons for doing so and could explain and support those reasons with candor.
After considering their legal options and facing a deadline to print the census forms, the Commerce and Justice departments announced last week that the fight was over and the forms were being sent to the printer without the question.
That night and the following morning, Mr. Trump called the accurate reports of administration statements in federal court “fake news,” adding that all possibilities were still being explored.
In private conversations with his advisers, Mr. Trump last week said he had never approved ending the effort to add a citizenship question to the census and blamed his administration for poorly communicating what was happening. Pointing to the Commerce Department’s announcement that it was starting to print the census without a citizenship question, Mr. Trump said, “Yeah, we’re printing, but we can always go back and add a question,” according to an administration official.
A federal judge in New York on Tuesday rejected the Trump administration’s plan to switch legal teams in the census case, throwing another wrench into the government’s drive to overcome a Supreme Court ruling that blocked its plan to ask every U.S. household how many residents are citizens.
The Justice Department announced on Sunday it was pulling its full team from the census cases and swapping in a fresh crew drawn from other units. Attorney General William Barr said on Monday that some lawyers on the case felt uncomfortable continuing after telling courts the citizenship question would be dropped, only to be contradicted the following morning by a furious tweet by President Trump.
But plaintiffs including the state of New York and the American Civil Liberties Union objected to the attorney switch, saying the government failed to justify the swap under court rules requiring satisfactory reasons for changing lawyers and assurances that litigation wouldn’t be sidetracked.
“Measured against those standards, [the government’s] motion is patently deficient,” U.S. District Judge Jesse Furman said in a three-page order. It provided “no reasons, let alone ‘satisfactory reasons,’ for the substitution of counsel.”
“Despite the president attempting to fire his lawyers, this is not an episode of ‘The Apprentice,’ ” said New York state Attorney General Letitia James, who represents a coalition of largely Democratic-led states and local governments challenging the citizenship question. “Judge Furman denied his request and required the administration to comply with the rules regarding substitution of counsel.”
“The Justice Department owes the public and the courts an explanation for its unprecedented substitution of the entire legal team that has been working on this case,” said ACLU attorney Dale Ho, who represents immigrant-rights groups. “The Trump administration is acting like it has something to hide, and we won’t rest until we know the truth.”
In Washington, the U.S. Justice Department declined to comment.
In January, Judge Furman blocked the citizenship question after finding that Commerce Secretary Wilbur Ross’s official rationale for posing the query—to help protect minority voting rights—wasn’t credible. The ruling, which the Supreme Court upheld last month, was based on requirements that agencies act with candor and a reasoned basis in making policy.
Federal courts in California and Maryland subsequently reached similar conclusions. The latter court currently is conducting an inquiry into whether the citizenship question was intended to discriminate against Hispanics, an allegation the Justice Department denies.
Judge Furman observed that until losing at the Supreme Court, the Trump administration had pushed courts to expedite proceedings.
“This case has been litigated on the premise—based in no small part on Defendants’ own insistence—that the speedy resolution of Plaintiffs’ claims is a matter of great private and public importance,” he wrote. That was difficult to square with a wholesale switch in legal teams, he wrote, observing that the government’s next filing was due in three days.
Should the Justice Department follow through on Mr. Trump’s goal of asking the district court for another chance, “time would plainly be of the essence in any further litigation relating to that decision,” the judge said.
The judge’s order allowed only two lawyers who have changed jobs to leave the case. The remaining nine will remain counsel until each files an individual affidavit justifying their departure, the order said.
This wasn’t the first time government attorneys have withdrawn from the case, Judge Furman noted. “In August 2018, lawyers from the United States Attorney’s Office for the Southern District of New York—‘the office that normally represents the Government in this District’—withdrew as counsel,” he wrote.
The switching out of the DOJ lawyers was a highly unusual shakeup.
James Burnham, the politically appointed head of the federal programs branch, told Mr. Barr a change made sense. A new team whose members had never dealt with the citizenship question wouldn’t be forced to answer damaging questions about why they were suddenly backtracking on arguments they had made in court for months, current and former officials said.
The former litigation team consisted of members of the department’s federal programs branch, which specializes in defending the administration against lawsuits and policy challenges. For the new team, lawyers from the Office of Immigration Litigation were recruited.
OIL has defended the Trump administration’s immigration policies and handled other politically sensitive issues. One of its lawyers came under fire for suggesting in an argument that officials didn’t necessarily need to provide toothbrushes, soap or beds for migrant children detained at the border for the conditions to be considered safe or sanitary.
Also on the new team is the politically appointed leader of the department’s consumer protection branch, who worked in the White House counsel’s office until May.
Members of the former team believed their options to put the question on the census were extremely limited and were caught off guard by Mr. Trump’s tweet saying he wished to push forward. But Mr. Barr told the New York Times he had been in regular talks with Mr. Trump about the census since the Supreme Court ruled and was aware of his desire to find a way to get the question on the 2020 form.
Justice Department lawyers told a federal judge on Friday that they would press ahead in their efforts to add a citizenship question to the 2020 census, but indicated they did not know yet what kind of rationale they would put forward.
The assertion capped a chaotic week in which administration officials first promised to abide by a Supreme Court order that effectively blocked the question from next year’s head count, then reversed themselves after President Trump denounced their statements on Twitter as “fake news” and pledged to restore the question.
Mr. Trump told reporters on Friday morning that he was considering issuing an executive order adding the question to the census, one of four or five options that had been presented to him.
Government lawyers have been scrambling since Mr. Trump took to Twitter on Wednesday to find a way to restore the citizenship question while obeying the Supreme Court’s order. The justices ruled last week that the administration’s rationale for the question was “contrived,” and said that it could be added to census questionnaires only if officials could offer an acceptable explanation of why it was needed.
That rationale has been the central issue in the battle over the question, which has morphed from a legal confrontation in four federal courts to a fierce partisan struggle with potentially huge implications for national and local politics alike. Census figures determine how the government allots hundreds of billions of federal dollars for programs that impact the entire nation, citizens and noncitizens alike.