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.”
Step Two: Trump’s original policy is successfully challenged on legal grounds.
It’s possible that no president has fared worse in court than Trump. His apologists blame “the resistance,” but often the real culprit is Trump himself. He proudly tweets his own unlawful intentions and sabotages his lawyers’ best arguments. Many of his orders, moreover, cannot withstand even cursory factual or logical review.
.. Step Three: The Trump administration engages in animus laundering.
When Trump loses in court, he doesn’t walk away. Instead, he grudgingly allows his lawyers and advisers to undertake a series of bogus, ends-driven “reviews.” As demonstrated by the travel ban and transgender ban cases, the goal here is to put just enough lipstick on the pig to pretend it isn’t a pig anymore. Often that is achieved by drafting a new order that uses slightly more polite and legalistic language to express the raw bigotry underlying Trump’s original decision. Justice Department attorneys can then insist in court that the (minimally revised) policy has been certified as legitimate by an assorted handful of Cabinet secretaries... It has become fashionable to insist that advisers such as Defense Secretary Jim Mattis and Chief of Staff John F. Kelly can pacify Trump’s most destructive instincts. With respect to the president’s animus-laden orders, however, they have displayed little interest in that role. Kelly publicly championed Trump’s travel ban. And it is rumored that Mattis, despite opposing the transgender ban, deemed this fight unworthy of his political capital. As a result, Trump’s agencies have largely run on animus autopilot.
- Trump has a tendency to do whatever his advisers most strongly advise him against, and they even have a term for such behavior: his “defiance disorder.”
- He, out of nowhere, tweeted his decision to ban transgender people from the military before a scheduled meeting with then-Chief of Staff Reince Priebus to discuss his options on the matter. “Oh my God, he just tweeted this,” Priebus reportedly said.
- His aides were similarly blindsided by his accusation, also via Twitter, that President Barack Obama wiretapped Trump during the presidential campaign.
- Trump was strongly advised not to dispatch then-press secretary Sean Spicer to dispute stories about Trump’s inaugural crowd size and later admitted, “I shouldn’t have done that.”
.. He wrote a column last month arguing that journalistic mistakes had allowed Trump to “shred the media’s credibility.” He has defended Trump’s Twitter attacks — even ones viewed as being sexist or advocating violence — as responses to the “battering” the president has taken.
.. The fact that the guy who made this argument early in Trump’s presidency is now relaying anecdotes — apparently via anonymous sources — about chaos behind the scenes in the White House should not be lost on anyone.
President Trump did the right thing in overturning the Obama policy of allowing the gender confused in uniform to defend our country.
First and foremost, there is no scientific evidence that transgenderism is a real thing, except insofar as someone feels or thinks they are the wrong sex. There are no reputable studies that show any physical reality that leads someone to believe they are the wrong sex. There is no transgender gene, no part of the brain that is different
.. “Currently, there is a significant lack of neurological evidence that defends or disputes the idea that the brain is sexually dimorphic, and if so, where exactly ‘gender’ and ‘sexual’ identities are located.” What she means is there is no brain proof for or against the notion that there are two sexes. Something that even children know is somehow beyond this academic. Though she goes on to admit there is no blood test, MRI, or answers to questionnaires that are capable of making a diagnosis.
The House passed a bill that would pony up nearly $1.6 billion for the first stretch of Donald Trump’s pet project.
.. And the release of a government report that estimates the Department of Homeland Security would have to screen 750,000 applicants to meet the president’s target for new Border Patrol hires.
.. And the discovery that Trump’s sudden announcement about barring transgender volunteers from the military was actually all about getting money to start building the … barrier.
.. But final passage was being held up by social conservatives, who were trying unsuccessfully to add an amendment barring the military from paying for gender reassignment surgery.
.. The vision of what the president wants in a wall keeps shifting. At first it was a 2,000-mile, 50-foot-tall concrete monolith. Then it became maybe a little shorter, and something with solar panels.
.. Trump also wants to hire 5,000 new Border Patrol officers, which the Department of Homeland Security’s inspector general estimates would require the screening of 750,000 applicants. The jobs, it seems, can be both demanding and extremely boring. Clearly, the only answer would be to bring in foreign workers. As our president said when he was explaining why Mar-a-Lago keeps getting special visas to hire cooks and cleaners from abroad, “It’s very, very hard to get people.”
.. It’s not clear he thinks building it would do any good, but he certainly believes it makes him look good.
.. But Trump was fixated on his promise to make Mexico pay for the wall — not actually making it happen so much as making Mexico say it would happen. Or that “we will work it out.” Or just not mentioning that Mexico was never going to put up a dime. (“… you cannot say that to the press. The press is going to go with that and I cannot live with that.”)
.. So it’s all about image.
.. The chances we’ll ever see this $20-billion-plus project completed are minimal. But just keeping up pretenses will mean an enormous waste of money and effort. Maybe we could make a deal like the one Trump was trying to urge on the Mexicans. Whenever the subject of the wall comes up, we would all agree to say, “Hey, you never can tell.”
In his total absence of dignity and decorum, his violence and his vulgarity, he was the emblem par excellence of the Trump White House. That reports of his wife filing for divorce surfaced during his brief apotheosis completed the picture. Fast-talking and fatuous, self-important and servile, he embodied the “commedia dell’arte” of Trump’s dysfunctional crew.
.. Sebastian Gorka, a deputy assistant to Trump, who recently told the BBC that, “The military is not a microcosm of civilian society. They are not there to reflect America. They are there to kill people and blow stuff up.”
.. The Scaramouch was just a stand-in for the president he professed to love. The real “braggart and poltroon” sits in the Oval Office.
.. What but some profound sense of inadequacy could explain the neediness and the nastiness, the pout and the pettiness, the vanity and the vulgarity, the anger and the aggression? This president gets off on the humiliation of others. He is inhabited by some deep violence to which self-control is a stranger. It is almost painful to watch the degree to which he pursues self-aggrandizement. He confounds masculinity with machismo. As J.K. Rowling put it in a tweet: “You tiny, tiny, tiny little man.”
.. The transgender decision .. was, in the words of Stephen Burbank, a professor at the University of Pennsylvania Law School, “an engine of malice.” It illustrated how, “In the realm of moral leadership, President Trump is leading a race to the bottom.”
.. The police department in Suffolk County also pushed back; it would not tolerate brutality.
.. But this is the president we have: turbulent, chaotic, boastful, cowardly and violent.
President Donald Trump’s tumultuous past week has widened rifts in his party, between those who vocally support the president’s combative style and others who bridle at it ..
.. After a week that included the president attacking his attorney general, the collapse of a GOP health bill, a surprise effort to bar transgender people in the military and a White House staff shakeup, divisions that were largely set aside at the start of 2017 have emerged anew... Signs are emerging that the intraparty battle could threaten the party’s standing in the 2018 elections and the president’s beyond that. Mr. Jolly, the former Florida congressman, said he is part of a group discussing how to put together a primary challenge to Mr. Trump in 2020... Michael Steele, a former Republican National Committee chairman and lieutenant governor of Maryland, said “the president is in his element when in front of a crowd of 40,000 instead of behind his desk dealing with the minutiae of governing. That’s not governing, that’s theater, a reality TV presidency.”