How Badly Is Neil Gorsuch Annoying the Other Supreme Court Justices?

I’M GONNA GO WITH “NOT BADLY ENOUGH:”

 How Badly Is Neil Gorsuch Annoying the Other Supreme Court Justices?

As Linda Greenhouse observed in the Times at the end of Gorsuch’s first term, he managed to violate the Court’s traditions as soon as he arrived. He dominated oral arguments, when new Justices are expected to hang back. He instructed his senior colleagues, who collectively have a total of a hundred and forty years’ experience on the Court, about how to do their jobs. Dissenting from a decision that involved the interpretation of federal laws, he wrote, “If a statute needs repair, there’s a constitutionally prescribed way to do it. It’s called legislation.” Perhaps he thought that the other Justices were unfamiliar with this thing called “legislation.”

Maybe that’s because he’s read their work. But if they’re having trouble keeping up with him, they can always retire. . . .
Speaking of which, there’s no mention of another outspoken Supreme Court Justice whose public statements have been far less temperate than Gorsuch’s. I suspect that’s because she’s the source of the piece.

139Posted at 12:07 pm by Glenn Reynolds   

How Badly Is Neil Gorsuch Annoying the Other Supreme Court Justices?

By Jeffrey Toobin

September 29, 2017

There is a strong internal culture based on the idea that no Justice should embarrass the Court; Gorsuch might earn some advice from the Chief Justice to mind the unwritten rules.

Photograph by Fred Schilling / Supreme Court via AP

In 2009 and 2010, Virginia Thomas became an outspoken opponent of the new President, Barack Obama. Ginni Thomas, as she is known, travelled the country as a leader of the growing Tea Party movement, which was particularly focussed on overturning the Affordable Care Act, also known as Obamacare. Around the same time, legal challenges to the law were working their way to the Supreme Court, where Ginni’s husband, Clarence Thomas, serves. Media attention began to focus on the propriety of such a close association between a Justice and a public adversary of a law whose fate was before the Court. Then, shortly before the A.C.A. case came before the Justices, in 2012, something happened. Ginni Thomas stopped her public advocacy; indeed, she has virtually disappeared from public view in the past few years.

Why? Neither Thomas has ever addressed the issue publicly, but it’s possible to offer some informed speculation. The Justices, and especially Chief Justice John Roberts, are assiduous defenders of the Court’s reputation. As savvy denizens of Washington, D.C., they understand the political dimension of their work, but they are careful to avoid any taint of outside political activity that might raise questions about their ethics. This view is shared across the ideological spectrum at the Court, as the Justices believe, with some reason, that an attack on one of them could quickly expand into an attack on all. So did the Chief Justice suggest to Justice Thomas, in a gentle and deferential way, that perhaps his wife’s activities were reflecting poorly on the Court? And did Clarence and Ginni Thomas subsequently decide that she might dial back her outspoken role? It seems more than possible.

The retreat of Ginni Thomas brings to mind the emergence of Justice Neil M. Gorsuch. Earlier this week, Gorsuch gave a speech before the Fund for American Studies, a conservative educational and advocacy group. The Justices do occasionally speak before groups with high political profiles. Most of the Justices on the conservative wing have appeared in front of the Federalist Society, and Ruth Bader Ginsburg, Sonia Sotomayor, and Stephen G. Breyer have addressed the American Constitution Society, the Federalists’ liberal counterpart. What made Gorsuch’s appearance especially notable was that it took place at the Trump International Hotel in Washington, which is the focus of several pending cases that may well wind up before the Supreme Court. These lawsuits allege that the Trump family’s ownership of the hotel, which is patronized by foreigners with interests before the executive branch, violates the emoluments clause of the Constitution. Gorsuch’s presence at the hotel could look like an endorsement of the propriety of its ownership arrangements.

Gorsuch’s Trump Hotel speech followed one he gave at the University of Louisville, where he was introduced by Mitch McConnell, the Senate Majority Leader, who was, more than anyone, responsible for blocking Obama’s nomination of Merrick Garland to the seat that Gorsuch now occupies. Gorsuch rewarded McConnell not only with an appearance in the senator’s home town but with a speech that underlined the Justice’s own conservative approach to the law.

There is nothing unlawful about Gorsuch’s speeches, though it’s hard to say just what the ethical rules are for Supreme Court Justices. They are exempt from the code that governs the conduct of other federal judges, so the Court has traditionally relied on informal self-policing. There is a strong internal culture based on the idea that no Justice should embarrass the Court; Gorsuch’s tiptoeing up to the line of advocacy for and gratitude to conservatives might earn some advice from the Chief Justice to mind the unwritten rules.

Gorsuch’s speeches might appear less distasteful to his colleagues if he had made an otherwise more graceful début on the Court. As Linda Greenhouse observed in the Times at the end of Gorsuch’s first term, he managed to violate the Court’s traditions as soon as he arrived. He dominated oral arguments, when new Justices are expected to hang back. He instructed his senior colleagues, who collectively have a total of a hundred and forty years’ experience on the Court, about how to do their jobs. Dissenting from a decision that involved the interpretation of federal laws, he wrote, “If a statute needs repair, there’s a constitutionally prescribed way to do it. It’s called legislation.” Perhaps he thought that the other Justices were unfamiliar with this thing called “legislation.” Gorsuch also expressed ill-disguised contempt for Anthony Kennedy’s landmark opinion legalizing same-sex marriage in all fifty states. Earlier this year, the Court’s majority overturned an Arkansas ruling that the state could refuse to put the name of a birth mother’s same-sex spouse on their child’s birth certificate. Dissenting, Gorsuch wrote, “Nothing in Obergefell spoke (let alone clearly) to the question.” That “let alone clearly” reflected a conservative consensus that Kennedy’s opinion was a confusing mess.

Perhaps Gorsuch will, as the years pass, prove to be a more clubbable colleague; or perhaps he’ll decide, at least socially, to go his own way. But what’s already clear is his ideology as a Justice. In his first fifteen cases on the Court, as the number-crunchers at FiveThirtyEight discovered, he joined Thomas, the most right-wing Justice, every time—and he even joined all of Thomas’s concurring opinions. Gorsuch’s outside activities may draw a private word from the Chief Justice, but Roberts would never presume (or want) to change Gorsuch’s votes. And the new Justice is casting those just as his sponsors had hoped and his opponents had feared.

• Jeffrey Toobin has been a staff writer at The New Yorker since 1993 and the senior legal analyst for CNN since 2002. He is the author of “The Oath: The Obama White House and the Supreme Court.”
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