When Neil Gorsuch was going through his confirmation hearings, it was clear that he would stake out a far right position on the Supreme Court. But the demeanor he projected and the way he was described by his supporters sent the message that he was a thoughtful, though determined conservative. As Mark Joseph Stern wrote, he “was packaged by his wealthy benefactors as the judicial equivalent of a carrot cake: mild and wholesome with the occasional hint of spice.”
After only a few months on the Court, it’s clear that all of that was merely a performance. Here is how some of the people who regularly cover the Supreme Court describe Gorsuch’s performance:
Whether out of ignorance or by deliberate choice, Neil Gorsuch is a norm breaker. He’s the new kid in class with his hand always up, the boy on the playground who snatches the ball out of turn. He is in his colleagues’ faces pointing out the error of their ways, his snarky tone oozing disrespect toward those who might, just might, know what they are talking about. It’s hard to ascribe this behavior to ignorance — he was, after all, like three of his colleagues, once a Supreme Court law clerk. But if it’s not ignorance, what is it? How could the folksy “Mr. Smith Goes to the Senate Judiciary Committee” morph so quickly into Donald Trump’s life-tenured judicial avatar?
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.”
It can be difficult for people outside the marble walls to know truly the relationships among the nine in their private chambers. But word seeps out, through clerks and other staff, through the justices’ friends, and through the justices themselves. Such communications make clear that Gorsuch has generated some ill will among justices. Signs have emerged from the bench, too, as Gorsuch has been on the receiving end of a few retorts.
Nina Totenberg noted that Gorsuch “ticks off some members of the court—and I don’t think it’s just the liberals,” and then provided this:
My surmise, from what I’m hearing, is that Justice [Elena] Kagan really has taken [Gorsuch] on in conference. And that it’s a pretty tough battle and it’s going to get tougher. And she is about as tough as they come, and I am not sure he’s as tough—or dare I say it, maybe not as smart. I always thought he was very smart, but he has a tin ear somehow, and he doesn’t seem to bring anything new to the conversation.
That is quite the bombshell for several reasons. No one attends conference but the justices. So if this kind of information has been leaked, it almost certainly came from one of them. Justices almost never talk about what goes on in conference. When they do, it is for a reason.
The fact that it is Justice Kagan who is taking Gorsuch on is fascinating. When it comes to the liberal side of the court, that wouldn’t be as surprising coming from the more fiery personalities of justices like Ginsburg and Sotomayor. Back in 2013, Adam Winkler wrote that Kagan was more in the mold of Justice Earl Warren.
Warren didn’t accomplish these by embarrassing his colleagues or by making sharper arguments on the merits. Warren was a master politician, one who’d sit with the other justices and bring them along slowly and steadily to his side. He sought to understand other justices’ concerns and address them. Unlike most of today’s justices, Warren was willing to work the halls to gain five votes.
That leads me to believe that this is a planned strategy to challenge Gorsuch, but in a way that might engage justices like Roberts and Kennedy rather than put them on the defensive.
While the dynamics that have led Kagan to challenge Gorsuch would be fascinating to unravel, several of these reporters point to what these tensions might mean when it comes to the more conservative justices. Surely Thomas and Alito welcome their new comrade in arms. But when it comes to Roberts and Kennedy, here is how Greenhouse ends her piece:
…while liberals have every reason to gnash their teeth over the justice who holds the seat that should have been Merrick Garland’s, they can perhaps take some comfort in the unexpected daylight that has opened between him and two of the court’s other conservatives, Chief Justice Roberts and Justice Kennedy. My concern when Justice Gorsuch joined the court was how like Chief Justice Roberts he seemed in demeanor and professional trajectory. I could see him as a natural ally who would bolster the chief justice’s most conservative instincts. It now seems just as likely that Neil Gorsuch’s main effect on John Roberts will be to get on his nerves.
I’m sure that most of the time a shared conservative ideology will bring Roberts and Gorsuch together. But the new kid on the block could create some openings that someone with Kagan’s skills should be able to exploit.
