Gorsuch

by John Greenya

  From that scrutiny emerged the Fair Debt Collection Practices Act, a statute that authorizes private lawsuits and weighty fines designed to deter wayward collection practices. So perhaps it comes as little surprise that we now face a question about who exactly qualifies as a “debt collector” subject to the Act’s rigors. Everyone agrees that the term embraces the repo man—someone hired by a creditor to collect an outstanding debt. But what if you purchase a debt and then try to collect it for yourself—does that make you a “debt collector” too? That’s the nub of the dispute now before us . . . .

  After all, is it really impossible to imagine that reasonable legislators might contend both ways on the question whether defaulted debt purchasers should be treated more like loan originators than independent debt collection agencies? About whether other existing incentives (in the form of common law duties, other statutory and regulatory obligations, economic incentives, or otherwise) suffice to deter debt purchasers from engaging in certain undesirable collection activities? . . . After all, it’s hardly unknown for new business models to emerge in response to regulation, and for regulation in turn to address new business models. Constant competition between constable and quarry, regulator and regulated, can come as no surprise in our changing world. But neither should the proper role of the judiciary in that process—to apply, not amend, the work of the People’s representatives.

  The judgment of the Court of Appeals is Affirmed.

  Court watchers gave Neil Gorsuch high marks for his maiden effort. John O. McGinniss, a professor of constitutional law at Northwestern, wrote in City Journal, to which he is a contributing editor: “Neil Gorsuch has spent only a fraction of a term as a Supreme Court justice, but few justices have had a more promising start. He has shown himself a careful textualist in reading statutes, a serious originalist in interpreting the Constitution, and an adherent of judicial restraint—and he has done all this with an engaging style that will allow him to reach over the heads of Court watchers and critics to the people. He seems an ideal schoolmaster for the American republic—a jurist whose every opinion is a lucid primer on the civics of our governance.”

  David Savage of the Los Angeles Times and Robert Barnes of the Washington Post, two veteran legal reporters, both wrote articles on Gorsuch’s first opinion. In an article headed “In his first Supreme Court Opinion, Gorsuch shows writing flair, strict interpretation of law,” Savage wrote, “Justice Neil M. Gorsuch used his first high court opinion Monday to write a concise, pointed essay on how the justices should decide cases—by following the ‘plain terms’ of the law, not by updating an old statute to meet new problems. ‘These are matters for Congress, not this court,’ he wrote.”

  And Barnes’s piece began, “Justice Neil M. Gorsuch got a cushy assignment for his first Supreme Court opinion—a unanimous ruling affirming a lower court—and used it to showcase both his writing style and much-touted devotion to a textual interpretation of the laws Congress passes.”

  The written record of the Gorsuch era on the U.S. Supreme Court had begun.

  BACK IN DECEMBER 2016, before Gorsuch was even nominated, University of Denver law professor Justin Marceau, who has litigated civil rights and death penalty cases, told the Denver Post that Neil Gorsuch was “ ‘a predictably socially conservative judge who tends to favor state power over federal power.’ ”

  According to the Post, “That kind of deference, Marceau adds, can create a difficult obstacle for civil rights cases, which often try to reel in ‘rogue’ state laws.

  “So what impact would Gorsuch have on the Supreme Court?

  “ ‘It means that we would see a judge who, while perhaps not as combative in personal style as Justice Scalia, is perhaps his intellectual equal,’ said Marceau, ‘and almost certainly his equal on conservative jurisprudential approaches to criminal justice and social justice issues that are bound to keep coming up in the country.’ ”

  “Whatever the topic of his opinions, Gorsuch has developed a reputation for language that is both sharp and conversational within a captivating narrative style—one that might be judiciously spiced for maximum effect. ‘Word on the street is that Judge Gorsuch has his law clerks add contractions to his opinions, to make himself sound more folksy—and therefore more appealing as a possible SCOTUS nominee.’ ”

  ON MONDAY, APRIL 17, 2017, Neil M. Gorsuch, who is either the 113th or the 101st Supreme Court justice in U.S. history—media accounts used the first number; Chief Justice John Roberts, in welcoming Gorsuch to the Court, used the second—took the bench with his eight fellow justices to hear oral argument in three cases. When he entered and took the far right seat, where the newest, most junior justice always sits, he had a broad smile on his face.

  NPR’s longtime legal correspondent Nina Totenberg observed, “Despite his white hair, Gorsuch looked for all the world like a kid on his first day of high school, proud to be with the big guys, and sitting tall, with a tiny grin on his face.”

  Before the lawyers began their arguments in the first case, Chief Justice Roberts noted the occasion (but not the bitter confirmation battle that had preceded it) by saying, “[I]t gives me great pleasure on behalf of myself and my colleagues to welcome Justice Gorsuch as the 101st associate justice of this court,” apparently subtracting the number who joined the court from outside as the chief justice (a short list that includes John Marshall). “Justice Gorsuch, we wish you a long and happy career in our common calling.” To which the new justice replied, with obvious sincerity, “Thank you to each of my new colleagues for the very warm welcome I received this week. I appreciate it very much.”

  No one knew if Justice Gorsuch, on his rookie appearance at the high court plate, would be silent, as Clarence Thomas almost always is, or if he would emulate his hero, Justice Scalia, who seldom was. It did not take long to find out.

  Over three hours of argument in three dry, legally technical cases, Gorsuch was an active, almost avid, questioner. Having skipped a judges’ conference meeting the previous Thursday so he could bone up on the three cases scheduled to be heard on the following Monday, Justice Gorsuch must have pulled the SCOTUS equivalent of an all-nighter, for it was soon apparent that he had the details of each case down cold.

  “He asked crisp and colloquial questions,” the New York Times reported, “and he kept asking them if he did not find the lawyers’ answers satisfactory.”

  The first case, which was about where to file Civil Service and discrimination cases, was, in the words of Justice Samuel Alito, “unbelievably complicated.” He said, “Nobody who is not a lawyer and no ordinary lawyer could read these statutes and figure out what they are supposed to do.” He then asked, “Who wrote this statute? Someone who takes pleasure in pulling wings off of flies?”

  In apparent agreement, Justice Sotomayor got a laugh when she said to one of the lawyers, “If we go down your route, and I’m writing that opinion—which I hope I’m not . . .” At that Gorsuch smiled, probably realizing that if the decision was in the majority then he, as the newest justice, might well receive that assignment from his chief.

  Gorsuch stayed silent for all of ten minutes, and then unleashed a string of questions, six in all. Reported the New York Times:

  But Justice Gorsuch approached the case with relish, and he made what is likely to become one of his signature points, that the court’s job is limited to reading the words of the statute under review.

  “Looking at the plain words of the statute,” he told a lawyer, Christopher Landau. “If you could just help me with that.”

  Justice Gorsuch grew a little self-conscious as he kept pressing. “I’m sorry for taking up so much time,” he said. “I apologize.”

  Later, when Mr. Landau started reading the statutory text aloud, Justice Gorsuch said: “Keep going. Keep going.”

  As the lawyer and the justice examined the language together, Mr. Landau, in a tone of pleased surprise, said, “I think I am maybe emphatically agreeing with you.”

>   Justice Gorsuch welcomed the comment. “I hope so,” he said, to laughter.

  Mr. Landau said his client was “not asking the court to break any new ground” by interpreting the statute to allow some filings.

  Justice Gorsuch agreed, in a way. “No,” he said, “just to continue to make things up.”

  In Perry v. Merit Systems Protection Board, Justice Gorsuch asked a signature question: “Wouldn’t it be a lot easier if we just followed the plain text of the statute? What am I missing?”

  Mr. Fletcher, a lawyer for the federal government, said there were reasons to interpret the statute broadly. But Gorsuch persisted: “Not reasons,” he said. “Where in the language?”

  In the second case, Gorsuch sounded a bit peckish when he said to another lawyer, “If you would just answer my question, I would be grateful.” When the lawyer tried, Gorsuch relaxed the pressure: “I’ll let you go.”

  In an article titled “Neil Gorsuch Sounded a Lot Like Justice Scalia on His First Day on the job,” the Huffington Post concluded, “Overall, the rookie justice was poised, respectful and unafraid to leave a mark on his first day. By one empiricist’s count, he spoke more words than six other justices. (According to attorney blogger Adam Feldman, only Roberts and Kagan talked more.) He also seemed friendly with Justice Sonia Sotomayor, who sits directly to his right and with whom he’ll be spending lots of time on the bench—at least until the next vacancy occurs.”

  It was the first of what will most likely be many more days on the Supreme Court for Neil M. Gorsuch—and the first of what will surely be many more questions.

  ON SEPTEMBER 26, TWO weeks before the Supreme Court was to begin its 2017 term, Gorsuch appeared not once but twice and gave speeches that some critics equated with campaigning for Senator Mitch McConnell. Again, Gorsuch made news for doing something that indicated he fully intended to be his own man. And, also once again, his actions stoked controversy. This was the second time since the Court had adjourned in May that he had made headlines for doing something his critics saw as partisan. The first was when he accepted an invitation from the Fund for American Studies, a conservative group, to give the main talk at its Defending Freedom Luncheon on September 29, 2017. The main objection to this event was that it was being held at Trump International Hotel.

  According to the New York Times, “Some experts in legal ethics and many liberal groups questioned the wisdom and prudence of Justice Gorsuch’s decision to speak at the hotel. Several lawsuits are challenging the constitutionality of foreign payments to companies controlled by President Trump.” Critics also protested the justice’s joint appearance with McConnell, but supporters quickly pointed out that liberal judges like Ruth Bader Ginsberg have often spoken to liberal groups. Perhaps this appearance would not have raised voices as much as it did had Neil Gorsuch not stated, as he did so emphatically at his confirmation hearings: “There is no such thing as a Republican judge or Democratic judge. We just have judges.”

  The Washington Post’s Supreme Court reporter, Robert Barnes—in a September 27, 2017, article titled “Gorsuch speeches raise questions of independence, critics say”—quoted Stanford law professor Deborah L. Rhode, whom he described as a “highly cited authority on legal ethics”: ‘All of this indicates he’s just ethically tone-deaf.’ ” And in Above the Law, Kathryn Rubino, an editor there, put the matter in the form of an implied prediction: “If you’re a liberal, Gorsuch ‘glad-handing’ for the GOP probably only registers about a 3 on the outrage meter . . . . But, you don’t have to be skilled at reading tea leaves to see this as a bad omen for the likely tenor of Judge Gorsuch’s jurisprudence.”

  Whatever may turn out to be the case, one thing has become quite clear: Supreme Court Associate Justice Neil Gorsuch, like Antonin Scalia, the man he replaced, will say what he wants to say (“I am a judge. I speak for myself.”). The tone may be different, but the tune will be the same. It wasn’t an accident that in his formative years, he made Scalia his personal hero. As Robert Barnes poined out at the end of his September 27 article, “[Gorsuch] . . . told his audiences that he has moved into Scalia’s old chambers and even taken possession of the huge stuffed elk head, ‘Leroy,’ that dominated one wall. ‘The truth is I am delighted to share space with Leroy because it turns out we share quite a lot in common,’ Gorsuch said. ‘We’re both native Coloradans. We both received a rather shocking summons to Washington, D.C. [And] neither of us is ever going to forget Justice Scalia.’ ”

  Author’s Note

  One day in mid-August of 1984, I got a call from Flip Brophy, then an agent in the office of Sterling Lord Literistic (and now for many years its president). She said the agency had a new client who needed a writer, and asked if I’d be willing to meet with Anne Gorsuch Burford, who had resigned, under pressure, as head of the Environmental Protection Agency (EPA) the previous year.

  Knowing only what I’d gotten from media accounts, I hesitated. Flip said, “Just go meet her and let me know what you think.” I did, and called Flip back with a positive report: “She’s just like my sister: She’s very bright, very Republican, and very nice. I’d be happy to work with her.” And so we did, and in 1986 McGraw-Hill published Are You Tough Enough? by Anne Burford with John Greenya.

  Although qualified to do so, Anne rarely bragged about herself, but occasionally about her three children. Because the oldest, high school junior Neil (his younger brother and sister were still in primary school), was already giving evidence of a bright future, he was the one she talked about most often.

  When the book came out, Anne thanked me in the acknowledgments section and also thanked my friend Mary Ellen Lynch (now Mary Ellen George), the secretary to the businessman from whom I rented my office. Anne would come in, tape a portion of the book with me, and then try to entice Mary Ellen into joining her at Sam and Harry’s down the street, saying. “Okay, he’ll be tied up for at least an hour; let’s go get a drink.” Mary Ellen said recently, “I was just a little secretary, but she was so down-to-earth and such great fun that I’d go—as long as my boss was out of town.”

  That was the right word for Anne—fun. And humorous. She once told a group of newspaper reporters, “My father always said, if you have something difficult to do you should do it right away. So the first thing I do every morning is read the Washington Post.”

  When Neil was ready for college, and then, just three years later, law school, I remember her mixture of pride and dismay that he would be going to not one but two “elite eastern liberal schools.” Apparently, Neil, who’d had no trouble competing academically at Columbia and had won scholarships for both college and law school, (plus his PhD from Oxford), felt otherwise.

  Anne moved back home to Denver, we kept in touch, and we often had lunch on her trips back to the nation’s capital. However, after 2000, I saw less and less of Anne, though I did hear she’d started using a portable oxygen device, so I wasn’t greatly surprised when I picked up the Washington Post on Thursday, July 22, 2004, and read that she had died of cancer.

  SOMETIME IN THE LATE 1990s, I got a call from John Daniel, Anne’s former chief of staff, inviting me to lunch with him and Neil Gorsuch. I found Neil, then a practicing lawyer in Washington, to be friendly, obviously bright (like both his parents), down-to-earth, and clearly not stuck on himself. That was the only time we met, but in 2006 when he was named to the court of appeals I received an invitation to his investiture ceremony in Denver. Lacking a crystal ball, I did not go; now, of course, I wish I had.

  When I read he was being considered as Justice Scalia’s replacement, I began the process that led to the writing of this book. In 2017, I requested an interview with him. But he declined, just as he’d done with all press requests for interviews since becoming a federal judge in 2006.

  In writing this book, I feel as if I have come full circle: the book is about Neil, but it is also for his mother.

  Appendix A

  NEIL GORSUCH’S (MARCH 21, 2017) STATEMENT BEFORE THE SENA
TE JUDICIARY COMMITTEE

  I could not even attempt this without Louise, my wife of more than twenty years. The sacrifices she has made and her giving heart leave me in awe. I love you so much. We started off in a place very different from this one: a small apartment and little to show for it. When Louise’s mother first came to visit, she was concerned by the conditions. As I headed out the door to work, I will never forget her whispering to her daughter—in a voice just loud enough for me to hear—Are you sure he’s really a lawyer?

  To my teenage daughters watching out West. Bathing chickens for the county fair. Devising ways to keep our determined pet goat out of the garden. Building a semi-functional plyboard hovercraft for science fair. Driving eight hours through a Wyoming snowstorm with high school debaters in the back arguing the whole way. These are just a few of my favorite memories. I love you impossibly.

  To my extended family across Colorado. When we gather, it’s dozens of us. We hold different political and religious views, but we are united in love. Between the family pranks and the pack of children running rampant, whoever is hosting is usually left with at least one drywall repair.

  To my parents and grandparents. They are no longer with us, but there’s no question on whose shoulders I stand. My mom was one of the first women graduates of the University of Colorado law school. As the first female assistant district attorney in Denver, she helped start a program to pursue deadbeat dads. And her idea of day care sometimes meant I got to spend the day wandering the halls or tagging behind police officers. She taught me that headlines are fleeting—courage lasts.

  My dad taught me that success in life has little to do with success. Kindness, he showed me, is the great virtue. He showed me too that there are few places closer to God than walking in the wilderness or wading a trout stream. Even if it is an awfully long drive home with the family dog after he encounters a skunk.