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.”
Mississippi prosecutor went on a racist crusade to have a black man executed. Clarence Thomas thinks that was just fine.
That’s the message of an astonishing decision handed down by the Supreme Court on Friday. The facts of the case, known as Flowers v. Mississippi, are straightforward. As Justice Brett Kavanaugh put it, in his admirably blunt opinion for the Court, “In 1996, Curtis Flowers allegedly murdered four people in Winona, Mississippi. Flowers is black. He has been tried six separate times before a jury for murder. The same lead prosecutor represented the State in all six trials.” Flowers was convicted in the first three trials, and sentenced to death. On each occasion, his conviction was overturned by the Mississippi Supreme Court, on the grounds of misconduct by the prosecutor, Doug Evans, mostly in the form of keeping African-Americans off the juries. Trials four and five ended in hung juries. In the sixth trial, the one that was before the Supreme Court, Flowers was convicted, but the Justices found that Evans had again discriminated against black people, and thus Flowers, in jury selection, and they overturned his conviction. (The breathtaking facts of the case and its accompanying legal saga are described at length on the American Public Media podcast “In the Dark.”)
As Kavanaugh recounted in his opinion, Evans’s actions were almost cartoonishly racist. To wit: in the six trials, the State employed its peremptory challenges (that is, challenges for which no reason need be given) to strike forty-one out of forty-two African-American prospective jurors. In the most recent trial, the State exercised peremptory strikes against five of six black prospective jurors. In addition, Evans questioned black prospective jurors a great deal more closely than he questioned whites. As Kavanaugh observed, with considerable understatement, “A court confronting that kind of pattern cannot ignore it.“
But Thomas can, and he did. Indeed, he filed a dissenting opinion that was genuinely outraged—not by the prosecutor but by his fellow-Justices, who dared to grant relief to Flowers, who has spent more than two decades in solitary confinement at Mississippi’s notorious Parchman prison. Thomas said that the prosecutor’s behavior was blameless, and he practically sneered at his colleagues, asserting that the majority had decided the Flowers case to “boost its self-esteem.” Thomas also found a way to blame the news media for the result. “Perhaps the Court granted certiorari because the case has received a fair amount of media attention,” he wrote, adding that “the media often seeks to titillate rather than to educate and inform.”
The decision in Flowers was 7–2, with Neil Gorsuch joining Thomas’s dissent. The two have become jurisprudentially inseparable, with Gorsuch serving as a kind of deputy to Thomas, as Thomas once served to Antonin Scalia. But Thomas usually has a majority of colleagues on his side, in a way that often eluded Scalia. The Flowers case notwithstanding, Thomas now wins most of the time, typically with the assistance of Chief Justice John Roberts, Samuel Alito, and Kavanaugh.
Despite Thomas’s usual silence on the bench (he did ask a question during the Flowers argument), he is clearly feeling ideologically aggressive these days. In his Flowers dissent, Thomas all but called for the overturning of the Court’s landmark decision in Batson v. Kentucky, from 1986, which prohibits prosecutors from using their peremptory challenges in racially discriminatory ways. Earlier this year, he called for reconsideration of New York Times Co. v. Sullivan, from 1964, which established modern libel law, with its protections for journalistic expression. And in a decision earlier this month, Thomas made the case that the Court should be more willing to overturn its precedents. It’s customary for the Justices to at least pretend to defer to past decisions, but Thomas apparently no longer feels obligated even to gesture to the Court’s past. As he put it last fall, in a concurring opinion in Gamble v. United States, “We should not invoke stare decisis to uphold precedents that are demonstrably erroneous.” Erroneous, of course, in the judicial world view of Thomas. The Supreme Court’s war on its past has begun, and Clarence Thomas is leading the charge.
What, exactly, is Gorsuch’s view of the use of and right to contraceptives?
Unlike the conservative justices currently on the court, during his confirmation hearing Gorsuch did not say he agreed with the Supreme Court’s 1965 ruling in Griswold v. Connecticut, which under the right to privacy nullified a law prohibiting the use of contraceptives, setting an important precedent for Roe v. Wade. The Griswold decision effectively found that a married couple has the constitutional right to privacy to choose to use contraception, and hasn’t been a very controversial decision.
Justices John Roberts, Samuel Alito, Anthony Kennedy and Clarence Thomas said they agreed with the Griswold decision. Thomas said he had “no quarrel” with Griswold. Roberts said: “I agree with the Griswold court’s conclusion that marital privacy extends to contraception and availability of that.”
However, the New Yorker in 2012 noted that Republican support for Griswold isn’t a given anymore, amid a new push to roll back the constitutional right to privacy. And in his confirmation hearing, Gorsuch did not clearly state he agreed with the decision. See this exchange:
Sen. Richard Blumenthal (D-Conn.): “Let me invoke your beliefs as a commentator. Do you believe it was the right result, based on your understanding of law — not your personal beliefs about whether contraceptives are a good thing or a bad thing, but your beliefs about the constitutional underpinning, the right to privacy, the Fourth Amendment, substantive due process, underpinning of Griswold versus Connecticut, was it the right result?”
Gorsuch: “Senator, I’ve consistently — I’m not picking out Griswold or any other particular case — I’ve drawn a line that I think is required of a good judge to be fair and to respect the separation of powers, without respect to precedent. A precedent of the United States Supreme Court, as we were talking with Senator Flake, they’re all precedents. They all deserve respect of a judge. […]
I have said, Senator, that, with this particular precedent we’re talking about, that it’s over 50 years old — weighty factor; that the reliance interests around it are many and great. I have said that it has been repeatedly reaffirmed by the United States Supreme Court. I’ve said that I cannot imagine a state actually legislating in this area. And I have said that I cannot imagine the Supreme Court taking someone wishing to challenge that precedent seriously. I don’t know how much more clear I could be to you, Senator.”
Later, Blumenthal tried again:
Blumenthal: “You’re unwilling to say that. And you’re unwilling to say, as Chief Justice Roberts did about Griswold, I agree with the Griswold court’s conclusion, that marital privacy extends to contraception and availability of that.”
Gorsuch: “Respectfully, Senator, I think we’re splitting hairs. I really do because I have told you quite clearly that both of those precedents are in the realm of 50 years old, that have serious reliance interests around them, that they’ve been repeatedly reaffirmed. And Senator, what I’ve tried to do with respect to all precedents is treat them equally, in my presentation before you. Because as a judge, I come at them equally. In my line of work, a precedent is a heavy, a weighty thing. And it deserves respect as precedent, as part of our history. And …
Blumenthal: “With all due respect, Your Honor, we’re doing more than splitting hairs here, because words matter. And the words of Chief Justice Roberts and Justice Alito were different than yours. Asking you to agree that these results were correct, I think is a relevant and important question. And your declining to do so — I respect your reasons, but I think that it speaks volumes, with all due respect.”
Gorsuch: “Well, let me try one more — this way, Senator, for you. Maybe this will help. The way I look at it is, I don’t come at these issues fresh. It’s not whether I agree or disagree with any particular precedent. That would be an act of hubris. Because a precedent, once it’s decided, it carries far more weight than what I personally think.”
The standoff between Attorney General William Barr and Congress over access to the full, unredacted report from special counsel Robert Mueller has parallels to a 1982 fight involving the late Anne Gorsuch Burford, then administrator of the Environmental Protection Agency.
The thorny legal questions about relations between Congress and the executive branch that were in play then and today could end up being decided by a Supreme Court that now features her son, Neil Gorsuch.
Then, like now, a Democratic House of Representatives wanted access to documents that a Republican president said were privileged law-enforcement materials. As a result of the Reagan administration’s refusal to comply with a congressional subpoena, Ms. Burford was cited for contempt, sparking a legal battle that culminated in her resignation.
Mr. Barr, who was a young lawyer in the Reagan administration at the time of the showdown involving Ms. Burford, is also expected to be cited for contempt. House Democratic leaders have scheduled a vote this week on a contempt resolution that would authorize a House lawsuit for access to the full Mueller report on Russian election interference. The Trump administration has said the report is protected by executive privilege. Another House committee is considering a separate contempt effort against Mr. Barr over census documents.
If either measure passes the full House, Mr. Barr will be only the third agency head ever held in contempt of Congress. Ms. Burford was the first, and Eric Holder, who was attorney general under President Barack Obama, was the second.
The Supreme Court has never decided the question of whether a congressional demand for information can overcome an executive-privilege claim by a presidential administration.
The 1982 fight involving Ms. Burford had its roots in the belief among a number of young lawyers in the Reagan administration that the Watergate scandal had weakened the presidency as an institution. Those lawyers wanted a test case to strengthen the executive branch’s hand in fighting back against demands from Congress for information and found one in Ms. Burford.
The Burford fight “was all part of the Reagan plan to retrieve purported lost powers as a result of Watergate and to create this unitary executive theory,” said Morton Rosenberg, a longtime legal analyst for the Congressional Research Service and now a fellow at the nonpartisan Project On Government Oversight.
Ms. Burford wrote in her 1986 memoir “Are You Tough Enough?” that the Reagan administration had first sought to enlist the interior secretary and the attorney general as possible test cases on executive privilege but they refused. Ms. Burford, however, agreed to test the constitutionality of an executive-privilege claim by refusing to hand over documents to Congress.
At issue were congressional subpoenas demanding information on hazardous waste dumps from the EPA. Mr. Reagan ordered Ms. Burford not to comply with the subpoena, citing the doctrine of executive privilege—a legal theory that has been blessed by courts that allows a president to shield some documents from public scrutiny in certain circumstances. In the landmark 1974 case United States v. Nixon, a unanimous Supreme Court said that executive privilege doesn’t protect documents in a criminal inquiry—in that case, Watergate—but has never decided a matter involving Congress.