by John Greenya
The Associated Press article concluded: “Overall, Gorsuch was ‘someone who encouraged the floating of ideas for discussion,’ willing to play devil’s advocate to spur conversation, said one of the writers and editors for the Federalist Paper, Eric Prager, now a corporate attorney. “He describes the Fed as centrist. But to former campus activist-turned-civil-rights-lawyer Jordan Kushner of Minneapolis, Gorsuch was anything but. ‘He’s good at sounding reasonable, but . . . he took really right-wing positions’ on protesters and the Iran-Contra affair, says Kushner, who tangled with Gorsuch on various issues.”
Near the end of her long article, Zadrozny, the Daily Beast reporter, wrote, “As a Columbia undergraduate, Gorsuch was also keenly aware of the stamp his college years would leave on his future ambitions. ‘[Students] are coming to the realization that one’s actions in college and one’s conduct as a young adult will be examined in relentless detail should one [choose] to enter the public sector,’ then junior Gorsuch and his colleagues presciently wrote in a November 1987 editorial in The Federalist Paper. ‘One bare fact cannot be ignored. College students are to be held responsible for their actions to a certain degree.’ ”
GORSUCH, WHO FINISHED COLLEGE in three years instead of four, used his limited writing time to good effect, covering a variety of subjects.
On Ronald Reagan’s foreign policy: “We need to clarify our policy-making, act with confidence, and decide: will we truly support the liberation of Nicaragua or will we try the ‘hands-off’ approach? To futilely condemn more Contras to death, as we did the Cuban freedom fighters at the Bay of Pigs and our own countrymen in Vietnam, to continue in ambivalent, contradictory policy-making, is no longer an acceptable alternative. It is time to step out of the mire of indecision that has frustrated American foreign policy over the last 20 years and that continues today.”
On diversity: “But on at least one significant count, Columbia falls considerably short. Amazingly, radically different people from radically different backgrounds and locales share an incredible hegemony here on Morningside Heights in their radical politics. Truth is: Columbia does have a moral responsibility. It has a moral responsibility to overcome the tyrannical atmosphere of ‘ideas’ that has so dominated life on Morningside for the last 20 years; it has a responsibility to make the political, philosophical, and ethical experience here as diverse and varied as the cultural and ethnic experience.”
On the movement to make Columbia’s fraternities coed: “Drawing analogies to slavery and segregation, supporters of the coed rule say that Columbia has a moral obligation to recognize that changing our Greek system is a matter of equal rights . . . . What such heavy-handed moralism misses is the fact that Columbia is a pluralistic university, that its fraternity system is equally pluralistic, with options available for everyone. There is no one at Columbia who cannot join a fraternity or initiate a new one if they wish to do so.”
On student protests: “With their ‘issues,’ campus ‘progressives’ have tried to convince us that we have an obligation to act. They insist that they are being harassed by ‘terroristic fascists.’ But what they forget to tell us is that they are asking for special treatment, acting as a vigilante squad while avoiding the weight of their own actions.”
FROM 1988 TO 2006, the year he became a judge, Neil Gorsuch’s writings were typical of each period: In law school he occasionally wrote papers for class assignments; while in private practice he wrote legal briefs and the kinds of communications that busy litigators write, such as memos and letters to keep clients informed of the latest developments in their cases, not to mention pleadings and other legal documents; and at the Department of Justice his writings were, for the most part, in response to requests for legal reasoning or information, still much like a lawyer-client relationship.
But once Gorsuch became a judge, he slipped easily into his old mode of rhetorical explicator. It had long been his belief that lawyers—and especially judges—should avoid legal jargon and formulaic phrasing and write so that the average intelligent person—not other judges and lawyers—could understand them. Also, he thought that the occasional well-turned phrase or bit of humor added to the making of an easily understood opinion. He made these his guiding principles, and it wasn’t long before people—and not just lawyers—were noticing, commenting on, and enjoying his written opinions.
The following are among those writings frequently quoted:
We’re beginning to think we have an inkling of Sisyphus’s fate. Courts of law exist to resolve disputes so that both sides might move on with their lives. Yet here we are, forty years in, issuing our seventh opinion in the Ute line and still addressing the same arguments we have addressed so many times before. (Ute Indian Tribe of the Unitah and Ouray Reservation, Plaintiff-Appellant v. Myton, a municipal corporation)
Can you win damages in a defamation suit for being called a member of the Aryan Brotherhood prison gang on cable television when, as it happens, you have merely conspired with the Brotherhood in a criminal enterprise? The answer is no. While the statement may cause you a world of trouble, while it may not be precisely true, it is substantially true. And that is enough to call an end to this litigation as a matter of law. (Bustos v. A & E Television Network)
Haunted houses may be full of ghosts, goblins, and guillotines, but it’s their more prosaic features that pose the real danger. Tyler Hodges found that out when an evening shift working the ticket booth ended with him plummeting down an elevator shaft. But as these things go, this case no longer involves Mr. Hodges. Years ago he recovered from his injuries, received a settlement, and moved on. This lingering specter of a lawsuit concerns only two insurance companies and who must foot the bill. And at the end of it all, we find, there is no escape for either of them. (Western World Ins Co v. Markel Am Ins Co.)
If a seventh grader starts trading fake burps for laughs in gym class, what’s a teacher to do? Order extra laps? Detention? A trip to the principal’s office? Maybe. But then again, maybe that’s too old school. Maybe today you call a police officer. And maybe today the officer decides that, instead of just escorting the now compliant thirteen year old to the principal’s office, an arrest would be a better idea. So out come the handcuffs and off goes the child to juvenile detention. My colleagues suggest the law permits exactly this option and they offer ninety-four pages explaining why they think that’s so. Respectfully, I remain unpersuaded. (A.M. v. Holmes)
Often enough the law can be “a ass—a idiot” . . . and there is little we judges can do about it, for it is (or should be) emphatically our job to apply, not rewrite, the law enacted by the people’s representatives. Indeed, a judge who likes every result he reaches is very likely a bad judge, reaching for results he prefers rather than those the law compels. So it is I admire my colleagues today, for no doubt they reach a result they dislike but believe the law demands—and in that I see the best of our profession and much to admire. It’s only that, in this particular case, I don’t believe the law happens to be quite as much of a ass as they do. (A.M v. Holmes)
Andrew Yellowbear will probably spend the rest of his life in prison. Time he must serve for murdering his daughter. With that much lying behind and still before him, Mr. Yellowbear has found sustenance in his faith. No one doubts the sincerity of his religious beliefs or that they are the reason he seeks access to his prison’s sweat lodge—a house of prayer and meditation the prison has supplied for those who share his Native American religious tradition. Yet the prison refuses to open the doors of that sweat lodge to Mr. Yellowbear alone, and so we have this litigation. While those convicted of crime in our society lawfully forfeit a great many civil liberties, Congress has (repeatedly) instructed that the sincere exercise of religion should not be among them—at least in the absence of a compelling reason. (Yellowbear v. Lampert)
In 2014, the quarterly legal publication Green Bag, which celebrates “Exemplary Legal Writing,” gave an award to Judge Gorsuch for his opinion in the Yellowbear case.
The following are two more of Gorsuch’s openings:
The Hatch Valley may be to chiles what the Napa Valley is to grapes. Whether it’s the soil, the desert’s dry heat, or the waters of the Rio Grande, the little town of Hatch, New Mexico, and its surroundings produce some of the world’s finest chile peppers. Just ask any of the 30,000 people who descend on the place every year for the chile festival.
When you own property in the West you don’t always own everything from the surface to the center of the Earth. Someone else may own the minerals lying underground and the right to access them. Someone else still might own the right to use the water flowing through your property. All this can invite confusion—and litigation. Ours is such a case, a battle between ranchers and miners over property claims they trace back to separate government grants an age ago.
GORSUCH’S WRITING ABILITY IS also evident in many of his speeches, in particular his tribute to Justice Scalia, his model for judicial philosophy. Entitled “Of Lions and Bears, Judges and Legislators, and the Legacy of Justice Scalia,” it was delivered on April 7, 2016, at Cleveland’s Case Western Reserve law school. It began:
Since Professor Adler extended his invitation, the legal world suffered a shock with the loss of Justice Scalia. A few weeks ago, I was taking a breather in the middle of a ski run with little on my mind but the next mogul field when my phone rang with the news. I immediately lost what breath I had left, and I am not embarrassed to admit that I couldn’t see the rest of the way down the mountain for the tears. From that moment it seemed clear to me there was no way I could give a speech about the law at this time without reference to that news.
So tonight I want to say something about Justice Scalia’s legacy. Sometimes people are described as lions of their profession and I have difficulty understanding exactly what that’s supposed to mean. Not so with Justice Scalia. He really was a lion of the law: docile in private life but a ferocious fighter when at work, with a roar that could echo for miles. Volumes rightly will be written about his contributions to American law, on the bench and off.
. . . I remember as if it were yesterday sitting in a law school audience like this one, listening to a newly minted Justice Scalia offer his Oliver Wendell Holmes lecture titled “The Rule of Law as a Law of Rules.” He offered that particular salvo in his defense of the traditional view of judging and the law almost thirty years ago now. It all comes so quickly. But it was and remains, I think, a most worthy way to spend a life.
May he rest in peace.
IN HIS FIRST OPINION as a judge on the United States Supreme Court, Henson v. Santander Consumer USA, Neil Gorsuch showed that his few months away from writing legal prose had not dulled his pen. In the case, which involved interpreting the Fair Debt Collection Practices Act of 1977, he was writing for the unanimous majority. His opinion began in typical Gorsuch narrative style, and with an alliterative spin: “Disruptive dinnertime calls, downright deceit, and more besides drew Congress’s eye to the debt collection industry.”
Chapter Nine
* * *
NEIL GORSUCH: SCALIA LITE OR SCALIA 3.0?
For years, but especially since the day Neil Gorsuch was elevated to the highest court in the land, much has been made of his long-standing respect and admiration for the late justice Antonin Scalia. Clearly, Gorsuch liked the man personally, noting in his 2016 speech at Case Western Reserve law school that he cried when he got the news of Scalia’s death. At the time of the Gorsuch nomination to the Supreme Court, one widely printed photo (taken by Gorsuch’s brother, J.J.) showed Justice Scalia and Judge Gorsuch, arms over shoulders and both smiling broadly, on the shore of a river. Scalia had signed the photo, “Fond memories of a day on the Colorado, with warm regards.” Gorsuch referred to that day when he said, in his opening statement to the Senate Judiciary Committee, “The Justice fished with the enthusiasm of a New Yorker. He thought the harder you slapped the line on the water, somehow the more the fish would love it.”
In addition to the personal amity, Gorsuch absorbed and agreed with Scalia’s approach to the law. Indeed, it can be said of originalism and textualism—with only a little exaggeration—that Scalia invented the combination, and Neil Gorsuch faithfully followed it.
In that same law school speech, Gorsuch also said:
But tonight I want to touch on a more thematic point and suggest that perhaps the great project of Justice Scalia’s career was to remind us of the differences between judges and legislators. To remind us those legislators may appeal to their own moral convictions and to claims about social utility to reshape the law as they think it should be in the future. But that judges should do none of these things in a democratic society. Judges should instead strive (if humanly and so imperfectly) to apply the law as it is, focusing backward, not forward, and looking to text, structure, and history to decide what a reasonable reader at the time of the events in question would have understood the law to be—not to decide cases based on their own moral convictions or the policy consequences they believe might serve society best.
As Justice Scalia put it, “[I]f you’re going to be a good and faithful judge, you have to resign yourself to the fact that you’re not always going to like the conclusions you reach. If you like them all the time, you’re probably doing something wrong.” It seems to me there can be little doubt about the success of this great project. We live in an age when the job of the federal judge is not so much to expound upon the common law as it is to interpret texts—whether constitutional, statutory, regulatory, or contractual. And as Justice Kagan acknowledged in her Scalia Lecture at Harvard Law School last year, “we’re all textualists now.”
Capturing the spirit of law school back when she and I attended, Justice Kagan went on to relate how professors and students often used to approach reading a statute with the question “[G]osh, what should this statute be,” rather than “[W]hat do the words on the paper say?” in the process wholly conflating the role of the judge with the role of the legislator. Happily, that much has changed, giving way to a return to a much more traditional view of the judicial function, one in which judges seek to interpret texts as reasonable affected parties might have done rather than rewrite texts to suit their own policy preferences.
And, as Justice Kagan said, “Justice Scalia had more to do with this [change] than anybody” because he “taught” (or really reminded) everybody how to do statutory interpretation differently.
ONE VERY CLEAR DIFFERENCE between the writing styles of Scalia and Gorsuch, two like-minded judges, is their tone. While Gorsuch is regularly and unfailingly polite, Scalia could be just the opposite.
In July 2015, a year before Scalia died, the well-known law professor and legal scholar and the dean of the Law School at UC Irvine, Erwin Chemerinsky, wrote a critical op-ed in the Los Angeles Times in which he said that Scalia’s writing was setting “a terrible example for young lawyers,” citing specifically his opinion in Glossip v. Gross, in which Justice Breyer had upheld the three-drug protocol used in lethal injection in the death penalty—“specifically whether it’s a cruel and unusual punishment and thus in violation of the 8th Amendment. Scalia wrote a scathing response. He referred to Breyer’s opinion as ‘gobbledy-gook’ and said his argument was ‘nonsense.’ He concluded by stating, ‘Justice Breyer does not just reject the death penalty, he rejects the Enlightenment.’ ”
Chemerinsky considered this phrasing too harsh, asking, “What did Breyer do to deserve this treatment?” Former O’Connor clerk David Kravitz asked, “But why is a Scalia zinger entertaining?” And then answered, “It’s entertaining because it shocks. It’s entertaining because you cannot quite believe that a Supreme Court justice would treat one of his colleagues with such profound disrespect.”
That phrase, “treat one of his colleagues with such profound disrespect,” neatly delineates the essential difference between the approaches of Antonin (“Nino”) Scalia and Neil McGill Gorsuch. Gorsuch doesn’t do disrespect to colleagues; Scalia, a
t times, seemed to revel in it.
What made Scalia’s name-calling hard to believe was that in person he was as affable, polite, and charming as, well, Neil Gorsuch. The sincere friendship between Scalia and the liberal icon Ruth Bader Ginsburg was often noted. (Both were great opera lovers, and playwright Derrick Ward wrote a comic operetta about their sincere friendship.)
Nonlawyers who’d met him also had their favorite pro-Scalia stories. Paul Anthony, a longtime television and radio personality (ubiquitous on Washington’s Channel 26, the PBS station), who met the late justice through the National Italian American Foundation, recalls that he and his wife attended a wine tasting at a friend’s house. Justice Scalia and his wife, Maureen, were at the same table.
At one point, the rather overbearing sommelier walked around the room asking guests wine-related questions. When he came to Scalia, the man—who apparently did not know he was addressing a Supreme Court justice—stood behind him and said, “Sir, what is the proper temperature for serving sauvignon blanc?”
Without turning around, Scalia said, in his distinctive voice, “I don’t answer questions, I ask them.”
Chuck Conconi is another well-known Washington personality of Italian-American heritage who met Justice Scalia and remembers his brilliance and wit. “I was writing a column for the Washington Post, and Scalia, who knew that I had written a book with Toni House, then the Supreme Court’s spokeswoman, asked her, ‘Who is this Chuck Conconi?’ When we finally happened to meet, at a black-tie function at the Metropolitan Club, he was quite charming, and funny, and obviously very, very bright. We discussed our Italian-American roots, and I mentioned that I had recently discovered there was a tiny town in Cuba called Conconi, at which he said, ‘Then I shall always remember you as a small town in Cuba.’ ”