Assessing Gorsuch

• Author: Mark Walsh
• Pages: 20-21

Supreme

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The Docket

20 || ABA JOURNAL JUNE 2018

As the U.S. Supreme Court enters June—the traditional month for

wrapping up its term—legal observers have much to anticipate. There

are potential landmark decisions coming on a range of controversial issues.

Speculation continues about a potential vacancy on the bench due to retirement. And

many are looking forward to getting a fuller picture of where the newest member of the

court, Justice Neil M. Gorsuch, stands at the end of his fi rst full term.

Assessing Gorsuch

After a year on the court, observers say the newest justice has been

mostly predictable, but upcoming decisions will paint a fuller picture

By Mark Walsh

Of course, that doesn’t mean obser vers have been

withholding their ass essments of President Donald J.

Trump’s fi rst Supreme Court nominee—both at the time

of Gorsuch’s anniversary on Apri l 10 and in the weeks

that followed. Conservat ives have generally been pleased

with what they have seen, w hile liberals say their concerns

have been confi rmed.

“What you’re seeing in terms of Justice G orsuch’s

work product is pretty much what the president said he

was seeking for the cour t, and pretty much what Neil

Gorsuch represented hims elf to be in his confi rmation

hearing,” says Leonard L eo, executive vice president

of the Federalist Society a nd an outside adviser to the

White House on potential Supreme Cour t nominations.

“This is an indiv idual who has honed himself to the

text of the Constit ution,” adds Leo, who helped shepherd

Gorsuch through his Senat e confi rmation process in

2017. “He has been quite for ward-leaning in bringing up

originalism a nd the text of the Constitution.”

Kristen Cl arke, president and executive director of the

National Lawyers’ Com mittee for Civil Rights Under

Law, an advocacy group that r aised concerns about the

nomination, notes that while some may say the verdic t

is still out, there’s much evidence over the past ye ar

suggesting that Gor such is deeply aligned with Justice

Clarence Thomas, considered by ma ny measures and

observers to be the cour t’s most conservative member.

Clarke says that despite some recent ins tances of

Gorsuch voting di erently from his colleag ue, “at the

end of the day, I think that the verdict is clea r: This is

a judge who is very much of the Justice Thomas ilk .”

A LECTURING TONE?

Gorsuch participat ed in 13 cases during the court’s last

month of arguments in Apri l 2017. In those, and in the

new term that began la st October, he attracted attention

for several reasons: his fr equency of writing, including

numerous separate dissents; a percept ion that he was,

at times, addressi ng his new colleagues in a lecturing

tone; and for a writing style t hat some observers consider

overwr ought.

In Gorsuch’s very fi rst dissent, there was an e xample of

the lecturing tone. In a n arcane case involving the proper

forum for review in an employment di scrimination case,

he suggested that cour ts should confi ne themselves to

the text of the statut e at issue, even when it presents a

di cult resu lt.

“If a statute needs repai r, there’s a constitutionally

prescribed way to do it. It’s called leg islation,” Gorsuch

wrote for himself a nd Thomas in the dissent to the 7-2

decision in Perry v. Merit Syste ms Protection Board.

Meanwhile, Gorsuch’s tendency to overexplain t hings

in opinions (such as when he was on the 10th U.S. Circuit

Court of Appeals at D enver and clumsily explicated his

use in one opinion of a Groucho Marx line about ele-

phants wearing pajama s) drew the spotlight. Da niel

Epps, co-host of the popular First Mondays podcas t,

came up with the Twitter hasht ag #GorsuchStyle, and

participants sought to r ewrite famous Supreme Court

passages the way the new justic e might.

By the time of his anniversa ry as a justice, Gorsuch’s

performance on the bench a nd his writing continued

to please his conser vative supporters. But on April 17,

a week after that m ilestone, a Gorsuch concurrence

elicited a more mixed reac tion.

Gorsuch joined the court ’s four liberal justice s in a

judgment that struck down a s unconstitutionally vague

part of a federal law that ha s been used to deport non-

U.S. citizens who commit felonies.

Gorsuch joined parts of t he majority opinion by

Justice Elena Kagan in S essions v. Dimaya, which

was also joined by Justices Rut h Bader Ginsburg,

Stephen G. Breyer and Sonia Sotomayor.

The case involved a native of the Philippines and