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Justice Neil Gorsuch: The First Seventy Days
July 25, 2017

Justice Neil Gorsuch:

The First Seventy Days

By Herbert W. Titus*


On April 17, 2017, Neil M. Gorsuch heard his first argument as an Associate Justice sitting on the United States Supreme Court. Although many new justices have waited to participate in oral argument until they have settled in, it was not so for Gorsuch. Grilling an experienced member of the Supreme Court bar, Gorsuch questioned whether it was proper for the judicial department to “fix” a flawed statute, or for Congress to do it. Advocating for an activist judiciary, the lawyer won his case by a vote of 7 to 2, as Justice Ruth Bader Ginsburg “tweaked” the statute, opening the door for Justice Gorsuch to write his first dissent, joined in only by Justice Thomas:

If a statute needs repair, there’s a constitutionally prescribed way to do it. It’s called legislation. To be sure, the demands of bicameralism and presentment are real and the process can be protracted. But the difficulty of making new laws isn’t some bug in the constitutional design: it’s the point of the design, the better to preserve liberty.

Pouncing on Gorsuch’s “lecture” on Separation of Powers 101, Linda Greenhouse – the New York Times veteran reporter covering the nation’s high Court – challenged this uppity newcomer for presuming that his colleagues “needed a lesson in how a bill becomes a law,” having “participated in a mere two weeks of Supreme Court arguments – 13 cases – amid eight colleagues whose collective Supreme Court tenure comes to 140 years.” 

 Apoplectic, Greenhouse first dismissed Gorsuch as if he were a juvenile show-off – “the new kid in class with his hand always up, the boy on the playground who snatches the ball out of turn.”  Then, as if he were also “Mr. Nasty,” Greenhouse charged Gorsuch for getting “in his colleagues faces pointing out the error of their ways, his snarky tone oozing disrespect towards those who might, just might, know what they are talking about.” Finally, she hit the high “C” of her article, chortling that Gorsuch was “Donald Trump’s life-tenured judicial avatar” – the very “incarnation of deity in earthly form.” The know-it-all!

Such name-calling has not been heard since the appointment of Justice Clarence Thomas. So it came as no surprise that Greenhouse would link the two justices in a “budding alliance,” featuring Justice Gorsuch’s earlier dissent from the Court’s summary reversal – without full briefing and oral argument – of an Arkansas Supreme Court decision upholding an Arkansas law establishing a “biology based birth registration scheme,” as if it were axiomatic that state laws governing the issuance of birth certificates must rigidly conform to the Court’s contentious two- year old ruling on same-sex marriage. Gorsuch wondered why the Court was in such a hurry, when “summary reversal is usually reserved for cases where the ‘law is settled and stable, the facts are not in dispute, and the decision below is clearly in error.’” Having earlier labeled Gorsuch a “flamboyant ... norm breaker,” Greenhouse was not about to mention this effort to honor the Court’s traditions.

 Nor did Greenhouse address Gorsuch’s joining with Justice Thomas’s in opposition to yet another refusal to grant certiorari review of a Second Amendment claim. Not only has the Court not “heard argument in a Second Amendment case in over seven years,” Justice Thomas observed, but it has ignored the traditional norms governing discretionary review. Mincing no words, Justice Thomas accused the Court of a “distressing trend: the treatment of the Second Amendment as a disfavored right.” This is not the first time for Justice Thomas to speak out, but it was the first time that he has been joined by any other justice – Justice Neil Gorsuch. And by joining Justice Thomas’ dissent, Justice Gorsuch has squarely planted his feet upon original Second Amendment soil, as the two agreed not only that the Second Amendment includes a right to public carry, but that the individual right is firmly fixed by the constitutional text, as Justice Scalia had so ably written in 2008.

But the story of Justice Gosuch’ first 70 days, is not found only in dissent.  Concurring in the Trinity Lutheran case in an opinion written by Chief Justice Roberts, Justices Thomas and Gorsuch agreed that a Missouri law that barred churches from a state government-funded tire recycling program for playgrounds violated the Free Exercise guarantee of the First Amendment – but with one specific reservation. Both declined to join the Chief’s footnote 3 which reads as follows:

 This case involves express discrimination based on religious identity with respect to playground resurfacing. We do not address religious uses or funding or other forms of discrimination.

 By rejecting this footnote, Justices Gorsuch and Thomas deprived the Chief Justice’s opinion of majority status, and thus, reduced its precedential value, leaving a four (Roberts, Kennedy, Alito and Kagan), two (Thomas, Gorsuch), and one (Breyer) split opinion.  Although Justice Gorsuch downplayed the significance of his objection to footnote 3 as a “modest qualification,” it was anything but modest. Instead, it called into question what he saw to be an “ad hoc improvisation” limited to the specific facts – “playground resurfacing” – not anchored to any “general principle.” In an apparent effort to introduce clarity in the Court’s muddied religious freedom jurisprudence, he closed his concurring opinion with what he had hoped to be a cornerstone principle:

 [T]he general principles here do not permit discrimination against religious exercise – whether on the playground or anywhere else.  

 This concluding sentence may come back to challenge Justice Gorsuch in October when President Trump’s so-called Muslim travel ban is scheduled for argument before the Court. By joining Justice Thomas’ concurring with the Court’s Per Curiam decision to hear and rule on the merits the legality and constitutionality of the travel ban Justice Gorsuch may be severely tested to answer the question whether the President’s Executive Order violates one or both of the two First Amendment religious freedom guarantees. After all, if, as a general principle, the Missouri law violated the Free Exercise guarantee because it “discriminated” against a Lutheran Church why would not the President’s Executive Order also be unconstitutional because that Order “disfavors” Muslims in violation of the Establishment Clause – as the courts of appeals of the 4th and 9th Circuits have ruled?

 It appears that come October 10, footnote 3 of the Chief Justice’s opinion limiting Trinity Lutheran to its facts, may very well take center stage in the October travel ban cases. If so, no justice has more at stake than Justice Gorsuch to explain and maintain his principled stand.


*Of Counsel

William J. Olson, P.C.

Vienna, Virginia 22180