‘Everything conservatives hoped for and liberals feared’: Neil Gorsuch makes his mark at the Supreme Court

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.


Gorsuch’s book “A Republic, If You Can Keep It,” goes on sale Tuesday. (Bill O’Leary/The Washington Post)

“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?”)

Supreme Court Justice Neil M. Gorsuch took the oath of office on April 10, 2017, at the White House. (Reuters)

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.”

Trump is running on animus autopilot

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.

This new Trump book could do even more damage than Michael Wolff’s. Here’s why.

  • 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.

.. But what is described above is a president who is acting haphazardly and without the guidance of his aides, making major allegations and policy decisions on whims and — in the case of the inaugural crowd episode — deliberately pushing false narratives despite apparently knowing better. The juiciest bit so far appears to be “defiance disorder, “a term that could only arise out of repeated instances of Trump being perceived as acting not in the interest of the country but in the interest of defying those around him and trying to prove that he’s smarter — or that he can get away with things they say he can’t.

Austin Ruse: Trans in Military Is Based on Fake Science

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.