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Justice Gorsuch's running start: What that may mean for Supreme Court

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The seven separate opinions Justice Neil Gorsuch has written so far equals the number that Justice Elena Kagan wrote in her first two terms.

For those wondering where Justice Neil Gorsuch – shown here during shown during a June 1 official group portrait session – will fit on the Supreme Court’s ideological spectrum, the best early clue might be to watch the company he keeps. Gorsuch has paired up eight times with Justice Clarence Thomas – the court’s most conservative member – in separate opinions that dissent from or take issue with the court’s majority rulings.
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A general rule of thumb for the US Supreme Court is that rookie justices need a few years to get comfortable before they find their voice. Two-plus months into his tenure, Justice Neil Gorsuch appears to have ignored that rule.

Most court watchers agree it is too early to know what kind of justice the former federal appeals court judge will be. Nevertheless, his first months on the bench can be fairly summed up in two words: talkative and conservative.

Justice Gorsuch has become “a reliable member of the four-Justice conservative bloc” that has existed since 2006, writes Stephen Vladeck, a professor at the University of Texas Law School, in an email to the Monitor.

But “it’s surprising to me that he wrote so many separate opinions,” he adds, referring to concurring opinions that agree in part with the majority ruling.

The seven separate opinions Justice Gorsuch has written so far equals the number that Justice Elena Kagan wrote in her first two terms. But it is understandable that he may have a shorter bedding-in process than most rookie justices, experts say, given his 10 years on the Denver-based 10th Circuit Court of Appeals.

“Before, you used to sit silently for five years before you got used to the place,” says Lyle Denniston, a journalist who covered the court for almost 60 years.

“He’s an experienced lower court judge, I think he has a pretty substantial ego, and I think he wants to show that while he’s only been on court three months, he’s really good at it,” adds Mr. Denniston, who most recently covered the Supreme Court for the National Constitution Center.

What that portends for the high court as a whole – and whether there could be a “Gorsuch effect” – remains to be seen. It’s unlikely he will sway his colleagues' opinions on major issues, since the justices have formed and solidified their feelings on them over decades. His longer-term impact may be in how future courts interpret his separate opinions, experts say.

Gorsuch built a reputation on the 10th Circuit as a staunch conservative and originalist – someone who, like Justice Scalia, interprets the Constitution as he believes the Framers intended 200 years ago. It is still early days, but his writings as a justice thus far are consistent with that reputation. Moreover, contrary to the popular belief that he will be a “new Scalia,” some experts believe he may be more consistently conservative in his rulings, putting him to the right of Scalia and closer to Justice Clarence Thomas. 

“I think he’s going to be an energetic member of the court, but it’s really clear he’s in a position to push the court considerably further to the right,” says Denniston, who is retiring this week.

A chatty textualist

As a justice, Gorsuch came out firing, asking 22 questions on his first day at the court (a new record, besting the 15 Justice Sonia Sotomayor asked on her first day). And his opinions so far on the high court appear consistent with his lower court record, both in substance and in style.

His first dissent, for example, turned an opaque case about employment grievances among federal employees into a cheery, conversational treatise on textualism and judicial deference to the legislature.

“For every statutory ‘fix’ [lower courts] have offered, more problems have emerged, problems that have only led to more ‘fixes’ still. New challenges come up just as fast as the old ones can be gaveled down,” he writes.

“At the end of a long day,” he concludes, “I just cannot find anything preventing us from applying the statute as written – or heard any good reason for deviating from its terms.”

In more significant decisions, Gorsuch has made his conservative philosophy clear, including dissenting to a decision ruling in favor of a same-sex couple in Arkansas seeking to have both their names on their child’s birth certificate, and dissenting to a decision to not hear a challenge to a strict concealed-carry policy in San Diego, Calif.

Guidelines for future courts

Early in its history, there was a norm against writing separate opinions on the Supreme Court, with the justices preferring to speak as one as often as possible. That norm has gradually eroded in recent decades, and no justice better embodies the increasing popularity of separate opinions than Justice Thomas.

Gorsuch has already joined Thomas in a number of separate opinions during his first few months. On Monday alone the pair signed onto eight separate opinions and dissents together.

Dissents and separate opinions don’t carry much legal weight themselves in the moment, but they can be helpful in making the public aware of a justice’s thinking. Perhaps more significantly, those opinions can become useful sources to justify changing court precedent, signaling, “alternative possibilities that a future court may end up taking up,” says Ilya Somin, a professor at George Mason University’s Antonin Scalia Law School.

Thomas “knows that sometimes what was once just one justice’s view will become more influential over time,” adds Professor Somin.

Gorsuch may think similarly, judging by his separate opinion in Trinity Lutheran v. Comer this week. The 7-2 majority opinion, which Gorsuch joined, ruled that a policy denying a state grant to a Missouri church to resurface its preschool playground violates the church’s free exercise rights. But a footnote in that opinion limited its scope to “the express discrimination based on religious identity with respect to playground resurfacing.”

In a separate opinion, Gorsuch and Thomas wrote that they disagreed with the footnote and think the majority opinion shouldn’t have been so narrow.

“If you want to argue that Trinity Lutheran is a sweeping decision,” says Denniston, “all you have to say is the part of the opinion that is supposedly narrowing [its scope] doesn’t have the support of the majority, because Justices Thomas and Gorsuch don’t join it.”

Outlier or bridge-builder?

Gorsuch’s writing style and, by all accounts, personable manner could help him sway the opinions of some of his fellow justices, some experts say. At least more than Scalia, with whom Gorsuch is frequently compared, who would sometimes publicly criticize his colleagues in dissents.

“Supreme Court justices are people just like the rest of us. If someone seems aggressive or insulting in an opinion, that might annoy them,” says Somin. “If they’re nice to them, that may lead them to have a more favorable view of that person’s opinion.”

But that effect “is likely to be marginal,” he continues, and unlikely to have an effect when it comes to major issues where the justices generally already have firmly-formed opinions.