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.”
The decision in the census case suggests President Trump can no longer take the court for granted.
A cynic might say that with his two major decisions on the last day of the Supreme Court term a week ago, Chief Justice John Roberts saved both the Republican Party and the court — first by shutting the federal courts’ door to claims of partisan gerrymandering, a practice in which both political parties indulge but that Republicans have perfected to a high art, and then by refusing to swallow the Trump administration’s dishonest rationale for adding a citizenship question to the 2020 census.
President Trump, having placed two justices on the Supreme Court, had taken to treating the court as a wholly owned subsidiary, and not without some justification. It was the court, after all, in an opinion by Chief Justice Roberts, joined by the other four Republican-appointed justices, that saved the president’s Muslim travel ban a year ago. But the chief justice’s opinion in the census case last week blew a hole in what appeared to be a protective firewall that the president can no longer take for granted.
I’m not joining the cynics, especially now that the citizenship question is dead — or so it seemed on Tuesday, based on the Justice Department’s assertion to the federal district judge handling a companion case in Maryland that the census forms were being printed without the citizenship question. On Wednesday, a furious President Trump ordered the Justice Department to reverse course; what followed was a telephone colloquy between that federal judge, George Hazel, and the lawyers for which the word bizarre is a breathtaking understatement. “I can’t possibly predict at this juncture what exactly is going to happen,” Joshua Gardner, a Justice Department lawyer, told the judge, who gave the administration until Friday afternoon to get its story straight.
It would take a heart of stone not to feel sorry for the administration’s lawyers, faced with defending the indefensible. As they recognized 24 hours earlier, the chief justice’s opinion in fact left no wiggle room. Once the behavior of Wilbur Ross, the secretary of commerce, was called out by the Supreme Court of the United States, the president was trapped — and now his lawyers are caught in his net. Maybe they can find a way around the chief justice’s decision, but I don’t think so.
Here’s why: Once the court rejected the administration’s stated rationale as phony — or “contrived,” as Chief Justice Roberts put it more politely in agreeing with Federal District Judge Jesse Furman that improved enforcement of the Voting Rights Act was not Secretary Ross’s real motive — the administration might have tried to come up with some other politically palatable explanation. That would almost certainly have failed, because courts generally will not accept what they call “post hoc rationalizations,” explanations cooked up under pressure and after the fact. But even if such a ploy had succeeded, its very success would have proved Secretary Ross to have been a liar all along.
The citizenship question is now history, fortunately, but this whole episode is too fascinating, too important for the country and the court, to put behind us just yet. So in this column, I want to probe the census decision itself, both for what it tells us about the court and for what it might suggest about the next test of the relationship between the president and the court that he has so recently regarded as his very own. That is the question of the validity of the president’s rescission of the program known as Deferred Action for Childhood Arrivals, or DACA, the Obama-era policy that now protects the “dreamers,” some 700,000 young undocumented people brought to this country as children, from being thrown out of the only country they have ever known. The court will hear that case in its next term, and there are some striking parallels with the census case that just might leave the Trump administration empty-handed again.
But first, the census case. I’ve been obsessed with imagining whatever dark night of the soul preceded the chief justice’s last-minute decision to shift course and reject the administration’s position.
I readily admit that I have no sources for the claim I just made. I have no proof that Chief Justice Roberts initially voted with the administration and talked himself out of that position sometime during the two months that elapsed between the April argument and the June decision. But I’ve been reading Supreme Court decisions for a very long time, and the opinions that provide the holding — the chief justice’s plus the partially concurring opinion of Justice Stephen Breyer for the court’s four liberals — have all the hallmarks of judicial tectonic plates that shifted late in the day to produce an outcome that none of the players anticipated at the start.
To begin with the chief justice’s opinion: The first 22 of its 28 pages are an argument for why the decision by Secretary Ross to add the citizenship question to the census was a reasonable one that fell squarely within his authority. Noting that Mr. Ross rejected the advice of Census Bureau experts and decided to proceed despite the risk of depressing the response rate, Chief Justice Roberts writes, “That decision was reasonable and reasonably explained, particularly in light of the long history of the citizenship question on the census.”
Then suddenly, on page 23, the opinion’s tone changes as the chief justice reviews the finding by Federal District Judge Furman that Secretary Ross’s explanation for why he wanted the citizenship question in the first place was a pretext. The official story was that it would help the Department of Justice — which was said to have requested the addition of the question — to better enforce the Voting Rights Act on behalf of members of minority groups. In fact, as Judge Furman determined from the evidence, it was Secretary Ross who solicited the Justice Department’s request, and whatever the secretary’s motivation, the reason he gave wasn’t the real one.
“We are presented,” Chief Justice Roberts observes dryly, “with an explanation for agency action that is incongruent with what the record reveals about the agency’s priorities and decision making process.” He continues:
“The reasoned explanation requirement of administrative law, after all, is meant to ensure that agencies offer genuine justifications for important decisions, reasons that can be scrutinized by courts and the interested public. Accepting contrived reasons would defeat the purpose of the enterprise. If judicial review is to be more than an empty ritual, it must demand something better than the explanation offered for the action taken in this case.”
Justice Breyer’s opinion, joined by Justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan, is almost as long as the chief justice’s. Nearly all of it reads like a dissent, arguing that Secretary Ross’s rejection of his own experts’ advice made the addition of the citizenship question unreasonable as a matter of law, “arbitrary and capricious” in the language of the Administrative Procedure Act. Only in Justice Breyer’s concluding paragraphs is there anything that reads like a concurrence: “I agree that the pretextual nature of the secretary’s decision provides a sufficient basis to affirm the District Court’s decision to send the matter back to the agency.” It’s hard to read these few paragraphs as anything other than a last-minute addition to a carefully crafted dissenting opinion, one that had rather suddenly become superfluous.
There were two other opinions filed in the case, one by Justice Clarence Thomas that was joined by Justices Neil Gorsuch and Brett Kavanaugh, and another by Justice Samuel Alito. Both disagreed vigorously with the chief justice’s bottom line. All four opinions scrupulously avoided any mention of what everybody knew: that documents brought to light in the weeks following the April 23 argument showed that the citizenship question was part of a plan not to help minority groups vote, but the opposite. The plan was to create and entrench Republican majorities in state legislatures by providing data for use if the Supreme Court gives the green light to counting only eligible voters in legislative redistricting. Conservative groups are poised to send such a case to the Supreme Court in the near future, part of a strategy to keep rapidly diversifying red states like Texas from turning blue.
There is no doubt that the justices were aware of this late-breaking development; during the days leading up to the decision, one of the plaintiff groups challenging the citizenship question had filed a brief with the court detailing the findings from the computer files of a recently deceased Republican redistricting specialist. If I’m right about the chief justice’s late-in-the-day change of heart, did these revelations play a part, even a subconscious one? That’s more speculation than even I am willing to engage in. Suffice it to say that it’s hard to imagine the administration’s litigating position undermined in a more devastating fashion.
It’s that observation that brings me to the DACA case. The court will actually hear three DACA cases, consolidated for a single argument and decision. All three are appeals by the administration of rulings that have barred it from carrying out its decision, announced in September 2017, to “unwind” the program. At issue are two Federal District Court opinions and a decision by the United States Court of Appeals for the Ninth Circuit that upheld a ruling by a federal district judge in San Francisco, William Alsup. The opinions differ slightly, but all found that the administration’s termination of DACA for the reason the administration has provided would violate the Administrative Procedure Act.
Here’s where the administration is caught. Its stated reason, as expressed by the acting secretary of homeland security on orders from the attorney general at the time, Jeff Sessions, was that DACA lacked statutory authority and was unconstitutional. At the heart of the administration’s appeal is the assertion that the federal courts lack jurisdiction to interfere with the “Executive Branch’s authority to revoke a discretionary policy of nonenforcement that is sanctioning an ongoing violation of federal immigration law by nearly 700,000 aliens.”
That is a very difficult position for the administration to maintain because it presents to the courts a question not of policy but of law. The administration would have a strong case for judicial deference if it described its rejection of DACA as a matter of enforcement priorities that differ from those of the previous administration. But by claiming that “the law is making us do it,” the administration is serving up the federal judges a question at the heart of their jurisdiction: What does the law require?
As Judge John D. Bates of the Federal District Court in Washington observed in his opinion, the administration provided only a few sentences of legal analysis to back up its claim. “This scant legal reasoning was insufficient to satisfy the department’s obligation to explain its departure from its prior stated view that DACA was lawful,” Judge Bates explained.
So the question is why the administration failed to offer a policy-based explanation, one that might well have persuaded the lower courts and eased its path to the Supreme Court. One reason might have been to protect the president, who declared shortly after his inauguration that “we are not after the dreamers, we are after the criminals” and that “the dreamers should rest easy.” The reason for going after the dreamers had therefore to be based on a claim of pure law, not a change of heart.
A more cynical explanation — and here I’ll indulge in the cynicism from which I refrained at the beginning of this column — is that in claiming that revoking the policy is required by law and not preference, the administration seeks to avoid accountability for a position that, if it were to prevail, would predictably cause economic disruption and public dismay.
Many policy positions predictably affect hundreds of thousands or millions of people; had Republicans succeeded in gutting the Affordable Care Act, for example, millions of people would have been thrown back into the health care jungle. But we don’t know their names. The DACA recipients, by contrast, have names that are known, not only to the Department of Homeland Security but to their schools, their employers, their communities. One dreamer recently received a Rhodes Scholarship and will not be able to return to the United States from Oxford if the administration wins its case. Others with less exalted achievements are simply getting their degrees, holding down jobs, paying their taxes, raising some 200,000 American-born children and going about their lives in the country they regard as their own.
The dreamers will still be here next April, when the census takers come around; the Supreme Court decision will almost certainly not be issued by then. They will be counted along with the rest of us in the grand decennial enumeration that the Constitution’s framers decreed. And a year from now, we’ll know whether the court that could see through one Trump administration strategy is willing and able to do it a second time.
WASHINGTON—A divided Supreme Court on Thursday prevented the Trump administration, for now, from asking U.S. residents on the 2020 census whether they are citizens, a considerable setback for the White House.
The court, in an opinion by Chief Justice John Roberts, didn’t issue a definitive decision finding the citizenship question unlawful, but it raised concerns about the Trump administration’s stated reason for adding the question to the census.
In strong language, the chief justice, joined by the court’s four liberal justices, said the administration’s official explanation “seems to have been contrived.”
The court sent the case back for more proceedings, leaving the 2020 census in a state of uncertainty—though if the deadline for finalizing the form is July 1, as census officials said this week, the question won’t be on it. However in at least one government filing, a census official gave the final date as Oct. 31.
Three different U.S. district judges have ruled that including the question was unlawful, with each finding that Commerce Secretary Wilbur Ross had not provided the public with his real reasons for doing so.
The Supreme Court’s ruling, which comes at a time of deeply divided immigration politics, could have considerable ramifications for the U.S. population count, as well as the drawing of congressional districts and the allocation of more than $600 billion in federal funds that are based on census data.
The census, mandated by the Constitution, counts all U.S. residents, regardless of citizenship or residency status.
A group of 18 states that sued Mr. Ross, as well as some career Census Bureau staffers, said adding a citizenship question would dampen response rates in immigrant-heavy communities, even in households with legal residents. If that happens, those communities could see a smaller piece of the federal pie, both in political representation and government funding.
The Trump administration said Mr. Ross, whose department oversees the Census Bureau, had the legal authority to include the question and determined that the benefits of having the citizenship data outweighed the potential of a lower response rate. It also pointed to earlier census surveys in the nation’s history that had asked about citizenship.
Mr. Ross’s explanations for adding the question have shifted over time. He and other Trump administration officials have said that census citizenship data would help the Justice Department with its efforts to comply with the Voting Rights Act, which protects minority voting rights.
Legal challengers in the case have said the administration’s reasons were the opposite—to dilute minority representation—and they said additional evidence has come to light recently that supports their claims. A Maryland federal judge this week said that evidence, which came from the files of a GOP political consultant who died last year, “potentially connects the dots between a discriminatory purpose—diluting Hispanics’ political power—and Secretary Ross’s decision.”
The evidence wasn’t directly before the Supreme Court when it took up the case, though it has received additional legal filings from both sides in recent weeks. New lower court proceedings are pending, though it isn’t clear what impact, if any, those will have after the high court’s ruling.
In April when the Supreme Court heard oral arguments on the census, President Trump said Americans deserved to know how many citizens were among those residing in their country.
Federal law prohibits the Census Bureau from sharing survey answers with federal immigration authorities, but a survey commissioned by the bureau last year found that asking about citizenship could be a substantial barrier to getting people to participate.
The whole country hasn’t been asked about citizenship on the decennial survey since 1950, but the government in recent years has asked a smaller sample of U.S. residents about their status.
The citizenship question touches on the broader immigration agenda that has been a central focus of the Trump presidency. Mr. Trump has barred travel by people from certain Muslim-majority countries—a ban the Supreme Court upheld last year. Mr. Trump’s administration also has attempted to limit immigrant claims for asylum; tried to cancel Obama-era benefits for illegal immigrants who came to the U.S. as children; and sought to build new barriers on the southern border. All of those efforts remain tied up in the courts.
Jared Kushner attends a secret meeting in Saudia Arabia with MBS that could benefit him and the Trumps. This is how Trump deals with the man responsible for killing and dismembering Jamal Koshoggi.
The Republicans have said to ban all Muslims because they are a national security risk, but are fine with giving Saudi Arabia nuclear reactors.