by John Greenya
The phrase “that human life is intrinsically valuable and that intentional killing is always wrong,” which is Gorsuch’s own, was cited by both pro- and con-Gorsuch camps as proof that if Roe v. Wade, the landmark case that legalized abortion, were to come before the Supreme Court again, Gorsuch would vote to overturn it. But at the time of his confirmation hearings for the Supreme Court, no one made that claim.
Writing about the book in 2017, former SCOTUSblog editor Amy Howe says, in part, that in the book Gorsuch devoted a whole chapter to analyzing the two major abortion cases other than Roe v. Wade (Planned Parenthood v. Casey and Cruzan v. Director, Missouri Department of Health), and concluded that they did not support a right to assisted suicide or euthanasia.
Gorsuch devotes an entire chapter to an analysis of Planned Parenthood v Casey, the Supreme Court’s 1992 decision reaffirming a woman’s right to an abortion, and Cruzan v Director, Missouri Department of Health, the court’s 1990 decision upholding the state’s refusal to allow the parents of a woman in a “persistent vegetative state” to terminate treatment on her behalf. The question for Gorsuch is whether the two cases support an interest in autonomy, protected by the Constitution, that could in turn support a right to assisted suicide and euthanasia. In his view, they do not.
Howe writes that in a footnote “Gorsuch stresses that his analysis in his book is limited to assisted suicide and euthanasia; he has no intent ‘to engage the abortion debate.’ But he doesn’t stop at that. Instead, he acknowledges that ‘abortion would be ruled out by the inviolability-of-life principle I intend to set forth if, but only if, a fetus is considered a human life.’ Gorsuch then seems to pull back again, reminding his readers that in Roe the Supreme Court ‘unequivocally held that a fetus is not a “person” for purposes of constitutional law’—suggesting, perhaps, that the issue has already been taken off the table.”
Thus it appears that, when Gorsuch was confirmed, his statements in The Future of Assisted Suicide and Euthanasia, provocative as they may seem, do not rise to the level of accurate predictions as to his views on abortion. They are not, as a lawyer would say, dispositive.
Earning his advanced degree from Oxford put Neil Gorsuch in special company. Only two other justices had the same degree—John Marshall Harlan II and David Souter. (Justice Harlan, a conservative member of the Warren Court who served from 1955 to 1971, is not to be confused with his more famous grandfather John Marshall Harlan, 1877–1911.) Gorsuch’s hero Byron White also attended Oxford, but did not receive a degree because he left in 1942 to join the navy as America’s participation in World War II began in earnest. Gorsuch’s Supreme Court colleague Stephen Breyer also has an Oxford degree, but his is a Bachelor of Arts, which he earned from Magdalen College in 1964.
Chapter Three
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CLERKING
Upon his return to America, Gorsuch went to work as a clerk to Anthony Kennedy, who would become yet another important mentor. It was a pivotal year. As the New York Times reported on March 3, 2017, “Then 25 and fresh off a year at Oxford, Judge Gorsuch had been hired by Justice Byron R. White for the most coveted apprenticeship in American law—a Supreme Court clerkship. But because Justice White had retired, Judge Gorsuch was also assigned, by happenstance, to Justice Kennedy, the longtime center of power at the Supreme Court.
“His year as a clerk, beginning in the summer of 1993, gave Judge Gorsuch a privileged look at the Court’s workings and a crash course in its unrelenting caseload and internal politics. As Judge Brett M. Kavanaugh of the United States Court of Appeals for the District of Columbia Circuit, and a fellow law clerk to Justice Kennedy that year who is on President Trump’s short list should another Supreme Court vacancy occur, observed, ‘We were in the middle of everything.’ [In] the aftermath of a bruising term [and the] fallout of a divisive abortion case, Planned Parenthood v. Casey, had left the justices eager to produce a quieter one in its wake.”
“ ‘Look, there are a hundred people a year that could do the job adequately,’ ” Justice White once said, according to his biographer, Dennis J. Hutchinson. “I might as well have someone who’s interesting, and that doesn’t mean the ones the fancy law professors recommend.’ ” That Justice White was partial to candidates from his home state, Colorado, and to those who had spent time at Oxford, where the justice had been a Rhodes Scholar, most likely helped Gorsuch’s application stand out, said two law clerks who worked for Justice White, David D. Meyer and John C. P. Goldberg. ‘Justice White probably would have seen echoes of himself in a way in Neil,’ said Mr. Meyer, who is now the dean of Tulane University Law School. Todd C. Peppers, who teaches at Roanoke College and has written extensively about Supreme Court law clerks, said Gorsuch’s academic credentials might have glittered just a little less brightly than those of some of the clerks hired by active justices.”
As Adam Liptak and Nicholas Fandos wrote in the New York Times:
Even clerks who worked for a single justice remembered a merciless workload. “It was the definition of a 24/7 job,” said Landis C. Best, who worked for Chief Justice William H. Rehnquist and is now a partner at Cahill Gordon & Reindel in New York. Judge Gorsuch cut an impressive, if not particularly ideological, figure. Surrounded by a class of elite law graduates that included a handful of future federal judges and acclaimed academics, his “quiet intelligence” was notable, said Louis Feldman, who clerked for Justice Scalia that year . . . .
Mostly, Judge Gorsuch was affable and unflappable. He was not, by several former colleagues’ accounts, a member of the regular pickup basketball games in the Supreme Court’s fifth-floor gym, known around the building as the “highest court in the land.” But he was a regular at clerk social events and occasional lunches hosted by each of the justices.
“He seemed very calm, measured, thoughtful, polite, gentlemanly—very much like what one notices about him now,” said Eugene Volokh, an O’Connor clerk who teaches at the University of California, Los Angeles. According to Judge Kavanaugh, “He fit into the place very easily. He’s just an easy guy to get along with. He doesn’t have sharp elbows.”
“We had a wide range of views, but we all really got along well,” Judge Kavanaugh said of the five clerks who, said the New York Times, were chosen in part to represent the whole political spectrum.
When in 2006 Judge Gorsuch joined the United States Court of Appeals for the Tenth Circuit, Justice Kennedy administered the oath to him in Denver and then explained the significance of the oath to the judge’s two young daughters, Justice Kennedy said, “He’s doing it to remind all of us that the first obligation any American has is to defend and protect the Constitution of the United States.”
Neil Gorsuch’s year of service to Stephen Breyer showed the young clerk how a true gentleman of the law went about his job. The instruction by example took.
EACH YEAR THE COURT receives thousands of petitions for certiorari, i.e., “cert petitions,” in which the petitioners ask the Court to hear their case. Although the Court hears but a fraction of them in a single term, each petition is read—and read carefully—by a clerk whose justice takes part in what is called the cert pool.
White did not join the pool, but Kennedy did, and in the fall of 1993 Neil Gorsuch found himself reading a cert petition named Martinez-Hidalgo v. United States. This 1991 case involved the boarding of a twenty-six-foot flagless boat—meaning one without a name or identification numbers—whose crew said the boat was from Colombia. After obtaining a “statement of no objection” from the Colombian government, the Coast Guard searched the boat, discovering 282 kilos of cocaine. The crew was charged with possession and intent to distribute the drug and later convicted in federal court. One of the crew, Martinez-Hidalgo, challenged the conviction in a petition for cert to the U.S. Supreme Court. It fell to Neil Gorsuch to analyze the record of the case and write a memo that stated whether the petition should be either granted or denied.
In an eleven-page memo, he wrote, “It seems c
lear that the [due process] issue raised by this case has broad legal significance, questioning as it does the extraterritorial reach of both Congress and the Constitution. That said, it is not at all clear that the case has (at this point) much practical significance; [petitioner] points to no large, extant class of [defendants] for whom a decision here would make any real difference.”
Gorsuch further advised that the legal dispute was “the faintest of splits” and that it “dissipates on examination.” (Real splits on federal legal questions among the federal circuits are a key reason the Court grants review of a case.) Gorsuch felt that the petitioner’s “briefing at the cert stage does not bode well for merits briefing,” he wrote, meaning it didn’t have much chance of moving forward and onto the Court’s docket.
According to Eugene Volokh, law professor and frequent blogger on legal matters (and a longtime friend of Gorsuch), clerks’ cert memos “have been used before as fodder in high court confirmation battles, most recently during the 2010 hearing for Elena Kagan. A few conservatives criticized Kagan for a cert memo she wrote to Justice Thurgood Marshall, for whom she clerked in the October 1987 term, regarding a school district’s race-conscious high-school-attendance rezoning plan. Kagan, in her memo to Marshall, called the voluntary plan ‘amazingly sensible’ and urged him to vote to deny review of the case, which the court did.
“One conservative testified before the Senate Judiciary Committee that Kagan’s stance would give administrators license to engage in ‘racial engineering.’ The charge didn’t make much headway with the committee criteria,” said Volokh.
“But” according to Mark Walsh, writing in SCOTUSblog, “Gorsuch’s cert pool memos provide a window on one key part of his clerkship. Justice Harry Blackmun, who was in his last term in 1993–94, was a member of the cert pool, like Kennedy. Blackmun preserved almost everything from his years of judicial service in his files, including clerk memos from the cert pool. Blackmun’s papers were first made publicly available at the Library of Congress in 2004. Clerk memos tend to be somewhat formulaic and cautious . . . . They perhaps reveal little about how a former law clerk might approach issues he might confront later in life as a Supreme Court justice.
“In another case, Gorsuch explored for ten pages an Arizona prison inmate’s arguments that his mandatory ‘hard labor’ crafting novelty belt buckles in a prison-run program qualified him as an ‘employee’ under the Fair Labor Standards Act. A federal district court and the Ninth Circuit held otherwise.
“Gorsuch concluded that the inmate’s petition did not present a circuit split, as asserted, between the Ninth Circuit and two other federal circuits that had ruled prisoners to be employees because they worked for non-prison entities. ‘The [court of appeals] “split” is more apparent than real,’ Gorsuch wrote. ‘No [court of appeals] has held a prisoner working for the prison institution or in a prison-sponsored work program to be a FLSA employee . . . .
“ ‘Now, perhaps if [the Ninth Circuit] were to go on in some future case to argue that a “state-structured program” includes working for McDonald’s, a conflict with other circuit rulings would surely emerge.’ ”
Mark Walsh added, “Gorsuch’s writing style in the memos is crisp and approachable, occasionally employing nice turns of phrase. In a petition stemming from a labor-organizing dispute at a North Carolina chicken-processing plant, Gorsuch discussed how the U.S. solicitor general had done ‘an artful job’ of distinguishing the case in question from a National Labor Relations Board decision known as Standard Products. ‘This case and Standard Products may sit uneasily together, but they can be coaxed into getting along,’ Gorsuch wrote.”
Walsh had one minor complaint: “[Gorsuch] did have a penchant for using stodgy terms, such as ‘amongst,’ ‘whilst,’ and ‘unbeknownst.’ One of Justice Blackmun’s clerks, in marking up a memo from Gorsuch, circled one of his uses of ‘whilst’ in an apparent equivalent of an eye roll.”
The Blackmun papers referred to above contain fifty cert memos written by Gorsuch, and in almost all of them he recommended denying review. In the case of a prisoner who was seeking relief as a pauper (in forma pauperis, in Courtspeak), he wrote: “Habeas [petitioner] seeks error correction” to overturn his murder and robbery conviction. “All questions presented are factbound; nothing remotely certworthy lurking here. Deny.”
In the case of a high school student who was involved in a carjacking and got sentenced to twelve years, Gorsuch was sympathetic, writing that the boy was the “school’s star football athlete and had the chance to attend college on scholarship,” and that “several teachers [had] submitted letters attesting to [petitioner’s] character.”
Yet, sympathy aside, Gorsuch called the defendant’s claim of ineffective assistance of counsel “enormously fact-laden . . . implicating no splits, and raising no important question of law . . . . It seems to me that the sentence imposed here was horribly harsh; but to intervene would constitute error-correction alone.” (This Gorsuch opinion, written as a twenty-six-year-old law clerk, might be read as foreshadowing his Tenth Circuit ruling, years later, in the TransAm trucker case, in which he was faulted for what some lawyers felt was an overreliance on the law as written, in contrast to a more lenient approach that might have better suited the petitioner.)
In the case of an inmate in Tennessee who claimed he was assaulted with a broomstick by another inmate and had unsuccessfully sued two jail employees for not preventing the attack, Gorsuch called the cert petition “frivolous” and a “clear deny on the merits.” He went further, suggesting that the justices might consider denying pauper status to the petitioner based on a Supreme Court rule that permits such denials when a petition is clearly frivolous.
But Gorsuch showed considerable sympathy for a petitioner who argued that the police had exceeded their authority when, following a routine traffic stop, she and a passenger were put into a police car while the police, with her consent, searched her car. During the women’s in-the-car conversation, which was recorded without their knowledge, they made what Gorsuch, in his memo, described as “several tape-recorded inculpatory statements.” After the police found a large amount of cocaine in the car, the women were arrested.
The driver sought to suppress the recording, claiming the police had violated her “reasonable expectation of privacy in her conversation with her friend. Two lower courts rejected the argument.”
“In a nine-page memo,” wrote Walsh, “Gorsuch suggested the justices ‘call for a response’ from the respondent, a tactic used in potentially certworthy cases when a government agency has initially waived its right to respond.
“ ‘As appalling as the police behavior here was,’ he wrote, ‘. . . it does seem fairly clear that [petitioner] voluntarily consented to the search of her vehicle, thus perhaps invalidating what might otherwise have been an impermissible search. . . .’ (The court denied the petition outright.)”
GORSUCH’S 1993–94 LAW CLERK class included other young lawyers who went on to careers of prominence, including former U.S. solicitor general Paul Clement (who clerked for Justice Antonin Scalia) and Judge Brett Kavanaugh (a Kennedy clerk) of the U.S. Court of Appeals for the District of Columbia Circuit, both of whom have been mentioned as potential Supreme Court picks for a Republican president. Other clerks in the 1993 term included Julius Genachowski (Justice David Souter), who served as chairman of the Federal Communications Commission under President Obama; James Ryan (Chief Justice Rehnquist), now the dean of the Harvard Graduate School of Education; and Allison Eid (Justice Clarence Thomas), now a member of the Colorado Supreme Court.
“You’re feeling lucky to be around such top young lawyers from all over the country,” Volokh told Walsh of SCOTUSblog.
WHILE THE GENERAL PUBLIC is aware that Supreme Court justices hire several law clerks for each new term of the Court, they have little idea of what the job entails. In early 1992, I found out by writing about some former clerks for Washington Lawyer, the magazine of the Dist
rict of Columbia bar association (“Supreme Clerks,” John Greenya, Washington Lawyer, May–June 1992), the year before Neil Gorsuch was a clerk on the Supreme Court.
The first former high court clerk I wrote about was Joseph Rauh, Jr., the renowned civil rights and labor lawyer: “It was my final year in law school, and I was walking down the hallway when my mentor and idol, Professor Felix Frankfurter, stopped me and said, ‘Mr. Rauh, what are you doing next year?’ I said, ‘I have an offer from the largest Jewish law firm in Cincinnati.’ And he said, ‘Well, you write them and tell them you’re not coming. I have something in mind.’ ”
That “something” turned out to be a clerkship on the United States Supreme Court for Justice Benjamin Cardozo. History had smiled on young Joe Rauh, who served as the last clerk to Justice Cardozo and the first to Associate Justice Felix Frankfurter. Joe Rauh has been a watcher of the Supreme Court—and Supreme Court clerks—ever since, more than fifty-five years.
He relates, with characteristic self-effacement, how he became a lawyer in a sense by default, and a Supreme Court clerk almost by happenstance. When he graduated from Harvard in 1932, there were no jobs to be had, and seeing as an older brother had preceded him into the family business, he went to law school. In his third year he finally got to take a course from a man he already revered, Felix Frankfurter.
“He took a shine to me, and I, naturally, was mesmerized by him. He would leave every week and go down and spend a couple of days at the White House helping to run the New Deal. It was just exciting to be near him.