Gorsuch Asks for Directions at SCOTUS


Gorsuch lost
Sure, it can be daunting to learn your way around a new office. But newly minted U.S. Supreme Court Justice Neil M. Gorsuch asked “where” so many times during his first day on the bench that it seemed like he’d managed to get lost in a place notorious for rigid seating assignments.

Take this exchange, from No 16-399, Perry v. Merit Systems Protection Bd.:

MR. FLETCHER: Let me give you a couple reasons …
JUSTICE GORSUCH: Not reasons. Where in the language?

Gorsuch wanted the attorney arguing for the federal government to point him to the words in the statute that allow federal employees to have certain employment claims first heard in federal trial courts rather than appellate courts.

The exchange was similar to the exchange that Gorsuch had with the attorney on the other side, because the parties actually agree that federal employees can take those claims directly to the trial courts.

Where (ok, now I’m doing it too) did the parties get such a radical idea? From the Supreme Court itself. In Kloeckner v. Solis, a unanimous Supreme Court said just that.

So why was Gorsuch so insistent he be pointed to the specific language? Well, because on its face, the statute doesn’t necessarily align with the ruling in Kloeckner all that well. Sure, the current reading would provide “a nice clean rule,” Gorsuch said. But the court has “to add a lot of words” to read it that way, he said.

Perhaps, one of the attorneys said, but that’s the way all of the courts that have addressed the issue have gone. So interpreting the statute in this way wouldn’t break any new ground, the attorney added.

No, Gorsuch responded. But the court would have to continue to just “make it up,” he said.

Justice Elena Kagan noted that reading the law in the way Gorsuch did would “be a kind of revolution,” to “the extent that you can have a revolution in this kind of case.”

But Gorsuch said, later in the day, that such consequences shouldn’t matter in the face of a law’s plain language.

In No. 16-373 California Public Employees’ Retirement System v. ANZ Securities, Gorsuch indicated that he didn’t particularly like the policy implications of an interpretation that would add seemingly needless work for the federal courts. But that’s what the plain meaning of the law requires, he said.

It was a theme Gorsuch hit on, a lot.

That Gorsuch places a high premium on the plain meaning of the text can’t be a surprise to even the most cursory follower of his confirmation process.

Also probably not a surprise for such followers is the fact that Gorsuch seemed to keep a slight smile on during the entirety of the unusually long—and dull—arguments.

And unless Gorsuch has a really big surprise for all of us (read: me), his questions during those oral arguments likely signal his ultimate vote in those cases. That’s because his inquires didn’t seem to be seeking clarification for a murky point of law, or playing the devil’s advocate as Justice Antonin Scalia often did. Instead, he appeared to have already made up his mind.

Will that continue in future arguments? Who knows. But at least he made it to the right chair.

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