OUR NEWEST JUSTICE: SOME THOUGHTS ON JUSTICE GORSUCH'S DEBUT OPINIONS.
|Sykes, Diane S.
Thank you for the invitation to deliver this year's Canary Lecture. It's an honor to participate in this lecture series, and I'm delighted to be with you today.
As we come together this afternoon, the clock is ticking down on the Supreme Court term that began last October. OT 2017 will likely be one of the most significant and closely scrutinized terms in recent memory. Only four argument weeks remain--just twelve days spread across two weeks this month and two weeks next month. It has not escaped notice that the Justices have not yet issued many merits opinions; all of the big cases of the term are still undecided. That will make for a dramatic finish, as Professor Adler and other legal commentators have noted. (1)
Almost everything the Court does is important, and each term produces at least a few blockbuster opinions. But law professors and pundits agree that this term will be particularly consequential. Justice Ginsburg confirmed the point in a notable interview just before the term started. (2) She said, "There is only one prediction that is entirely safe about the upcoming term.... [I]t will be momentous." (3)
The reason, of course, is that we have a new justice. And it is said that a new justice means a new Court. There's truth in that observation, as I know from my own experience serving on the supreme court of my home state of Wisconsin. Courts are human institutions; interpreting and applying legal texts requires judgment; and judges differ in the priority and weight they give to various sources of law, rules of legal interpretation, and normative constraints on their judgment.
With that in mind, today I'd like to focus on what by any measure is the biggest law story of this past year: the confirmation of Judge Neil Gorsuch as Associate Justice of the Supreme Court, filling the vacancy created by the untimely death of Justice Antonin Scalia. I think we can all agree that our newest justice has very big shoes to fill. Justice Scalia's influence on the law can scarcely be overstated. He is rightly regarded as one of the most consequential justices in our nation's history. (4) More than any other figure, he was responsible for the two most important shifts in interpretive method in our time: he reestablished the primacy of textualism in statutory interpretation, and he revived originalism in constitutional interpretation. (5) These ideas have their own force and have always been with us. But Justice Scalia's articulation of the justification for these overlapping interpretive theories was powerful and persuasive and has been uniquely responsible for their restoration. It's not too much to say that he changed the terms of the debate about the role of the judicial branch and the practice of judging in our country.
Justice Scalia's sudden death in February of 2016 was an enormous loss to the Court. The thirteen-month interregnum before his successor took his seat turned out to be a low-key, no-drama period of quietude as the Chief Justice steered his short-handed court away from highstakes controversies and the justices waited for a new colleague. Professor Will Baude, a law professor at the University of Chicago, referred to this period as "the calm before the storm." (6) Astute court watchers agreed (here again, a nod to your own Professor Adler). (7) Time will tell whether they're right, but I wouldn't bet against them.
So we gather together today at the dawn of a new Court, and I think it's fitting to turn our attention to our newest justice. No doubt everyone in this room followed his nomination and confirmation with great interest. Judge Gorsuch's elevation was noteworthy for many reasons, not the least of which is that it's been a long time since we've had a justice from the Mountain West flyover country. Some commentators have pointed out that Justice Gorsuch brings some welcome geographic diversity to a Court long dominated by easterners. (8) In that respect he follows in the distinguished footsteps of his first boss and mentor, Justice Byron White. (9) I'll come back to this point about geographic diversity at the end of my remarks.
I'm sure it will come as no surprise to hear that I have long admired Judge Gorsuch's work from my vantage point two circuits away--as the crow flies, not numerically. He is a worthy successor to Justice Scalia. He appears to have many of the same judicial attributes and jurisprudential commitments as his predecessor. But there are important differences as well.
My goal today is modest: I will not make any predictions about how Justice Gorsuch might vote in particular cases or even more generally in particular classes of cases. That's a hazardous undertaking for even the most experienced scholars of the Court, and it's off limits for a lower-court judge. Instead, I thought it might be useful to review the decisions Justice Gorsuch wrote in his first few months on the Court--at the very end of last term--to look for some broader insights about his approach to his new role.
The first thing to notice is how many decisions he wrote. He was confirmed in time for the final round of arguments of the term--thirteen cases heard across two weeks in April--and was assigned to write for the Court in just one. (10) But he wrote seven separate opinions--three concurrences, three dissents, and a formal statement in the Justice Thomas tradition urging the Court to grant cert, on a particular legal issue at its next opportunity. (11)
That was a remarkable debut for a new justice; this rapid pace of separate opinion writing so early in a new justice's tenure is unprecedented. Perhaps we should have seen it coming in his energetic participation at oral argument. In recent years only Justice Sotomayor jumped into the fray so quickly as an interlocutor from the bench; (12) a more gradual approach seems to be the norm.
There was no shortage of media commentary about our new justice's confident and energetic early performance. Richard Wolf of USA Today wrote that Justice Gorsuch "arrived in April with gusto." (13) Adam Liptak, the Supreme Court reporter for The New York Times, described Justice Gorsuch's first opinions as "remarkably self-assured" for a brand new member of the Court, demonstrating his readiness to "swing for the fences." (14) Robert Barnes of The Washington Post offered similar observations, noting that "in his short 2 1/2 months on the Supreme Court, Gorsuch has proved himself to be a self-assured jurist unafraid of the big stage." (15) NPR's Nina Totenberg, another veteran of the Supreme Court press corps, put it this way: "Justice Gorsuch seems both sure-footed and sure of himself and his views." (16) Linda Greenhouse, who used to cover the Court for the Times and now writes a column for the paper, was harshly critical of Justice Gorsuch's assertive performance so soon after joining the Court; she devoted a full column to what she called the "sheer flamboyance of the junior justice's behavior." (17)
Northwestern Law Professor John McGinnis entered the discussion with an interesting post in response to this early commentary. In his view:
[Justice] Gorsuch's confident performance flows directly from his formal conception of law. Being a Supreme Court justice for a formalist is no different from being any other kind of judge and in particular no different from being the Court of Appeals judge [Justice] Gorsuch had been for over ten years. Under this view, the lawful judge should render judgment on the basis of his best judgment about the meaning of statutory and constitutional provisions that are put before him or her and candidly set out the reasoning in support, regardless of the political consequences and regardless of what others think. Thus, as a formalist and experienced judge[,] Justice Gorsuch was able to act forcefully from day one on the Supreme Court. (18) The professor makes a very insightful point. I think we'd do well to keep it in mind as we examine Justice Gorsuch's early work. So let's turn to that now. This will not be a comprehensive analysis of his first set of opinions. I'll limit my comments to those I view as most worthy of our study--his first opinion for the Court, his first two merits dissents, and his first two merits concurrences. From these opinions I offer three very general takeaways.
First, Neil Gorsuch is a textualist. And the Pope is Catholic.
Seriously, if anyone thought he would turn out to be anything but a principled textualist like his predecessor, these first few opinions put that misconception to rest. With that observation out of the way, my second point is this: Neil Gorsuch writes in vivid prose and with incisive analytical clarity, just as his predecessor did. But his style is more informal and sometimes downright conversational. He directly engages the reader with plain language and effective use of simple rhetorical questions to bring an otherwise complex dispute into sharper focus. Clear and lively writing is valuable for its own sake, but it can also be a powerful tool of persuasion and produce a more accessible set of instructions for the bench and bar and the other branches of government. There's something else to notice about his writing style. When he disagrees with his colleagues, he is unfailingly respectful and polite. This too distinguishes...
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