In the time since President Donald Trump nominated him, Supreme Court Justice Neil Gorsuch may have replaced Justice Ruth Bader Ginsburg as the court’s most notorious member.
Since his confirmation in April, Gorsuch has made headlines for speaking to deep-pocketed conservatives in Trump’s luxury Washington hotel, raising questions about judicial ethics and impartiality. He’s taken what some saw as an in-your-face victory lap through Kentucky with Senate Majority Leader Mitch McConnell, the powerful Republican who engineered his confirmation.
Eschewing the traditional seen-but-rarely-heard role of the new justice on the bench, Gorsuch has crossed swords with some of his eight colleagues during oral arguments and taken acerbic shots at them in written opinions.
Behind the court’s closed doors, Gorsuch is reportedly engaged in an epic intellectual battle with Justice Elena Kagan, a liberal stalwart.
Linda Greenhouse, the venerable legal journalist, put a finer point on it in a July column analyzing the new justice’s first months. The former Colorado appellate judge who holds degrees from Columbia University, Harvard Law School, and the University of Oxford, wrote in The New York Times “Trump [is a]
Yet as a far-right jurist handpicked by the Federalist Society to reinvigorate the court’s conservative bloc, Gorsuch has performed exactly as advertised. He’s planted his ideological flag alongside Justice Clarence Thomas, heretofore the court’s most conservative member, and could help deliver big wins for the right on issues like affirmative action, labor unions’ political activities and women’s reproductive rights.
Leonard Leo, Federalist Society vice president, says he and Trump agree: Gorsuch is an outstanding justice, the new template for future Supreme Court nominations. The president, Leo says, “has a sense of independence and [doing] what’s right. He saw that in Neil Gorsuch.”
Critics, however, say Gorsuch must adapt more quickly to the court’s long-held norms and work harder to engage rather than alienate his colleagues.
“The signals aren’t so positive right now, but it is very, very early,” says Caroline Fredrickson, president of the American Constitution Society, a progressive think tank specializing in national legal issues.
“I’d like to think that there’s room for discussion [in cases] and that [justices] are not all knee-jerk in their decisions,” Fredrickson says. Reports of discord around Gorsuch, she says, “means that other justices have a better ability to kind of engage with their colleagues,” and he may have a harder time convincing others of his opinion.
Case in point: in June, the Supreme Court reached a 5–3 decision in a major redistricting case out of North Carolina, a matter with broad political implications and a big win for the left. The liberals prevailed because, in an unexpected turn, Kagan persuaded the conservative Thomas to vote with her. Gorsuch was not on the court when the case was argued and didn’t cast a vote.
The unlikely dynamic of Kagan and Thomas voting in sync on a case that benefits liberals could be an important portent for a court sitting in a tumultuous era, with a series of divisive issues on its 2017–2018 docket.
The beneficiary of McConnell’s bold political gambit that blocked former President Barack Obama from replacing the late Justice Antonin Scalia, Trump picked Gorsuch from a list provided to him by the Federalist Society, which flourished in the Reagan era but had been overshadowed in the Obama years.
During Senate confirmation hearings, irate Democrats took on majority Republicans in an acrimonious battle over Gorsuch that ended when McConnell, in a move deemed “the nuclear option,” permanently stripped the minority party of its right to filibuster all judicial nominations. Still, Gorsuch won confirmation by a mere nine votes—the narrowest approval margin for a justice in recent times, far lower than Kagan’s noteworthy 26-vote gap.
Just weeks after his confirmation, Gorsuch, who pledged to view cases through a nonpartisan lens, accepted an invitation to address a convention of influential conservatives at the posh Trump International Hotel in downtown Washington.
Despite warnings that speaking to well-heeled partisans at a hotel owned by the president who nominated him might be bad optics, Gorsuch would not renege. In sticking to his guns, however, the justice also prompted speculation about a more practical matter: whether he will recuse himself when a conflict-of-interest lawsuit over Trump’s ownership of the hotel reaches the Supreme Court’s docket, as expected.
Adding to Gorsuch’s image problems, just before that keynote speech, he joined McConnell, who represents Kentucky, for speeches at the University of Louisville and the law school at the University of Kentucky, the majority leader’s alma maters. Critics on the left, already fuming about the brass-knuckle tactics McConnell employed to get Gorsuch on the bench, saw it as graceless, but supporters on the right said the justice and his patron were well within established Supreme Court decorum.
But people—especially conservatives—may be willing to overlook the way Gorsuch has ruffled feathers. In the 15 cases he’s heard so far, on issues ranging from the death penalty to same-sex marriage, Gorsuch “has sided with [Thomas], the court’s single most conservative member,” according to data journalism website FiveThirtyEight. “More than that, he’s joined every concurring opinion that Thomas has issued so far. That is, he didn’t just agree with Thomas on the outcomes of the case but also with the reasoning by which those outcomes were reached.”
Jeffrey Toobin, a veteran Supreme Court analyst for The New Yorker and CNN, believes the justice’s consistency will define Gorsuch’s tenure more than controversial speeches and internal court politics. Toobin argues that a reliable conservative vote, and Gorsuch’s presumed long future on the bench, is the only thing about him that really matters.
“Gorsuch’s outside activities may draw a private word from the Chief Justice, but Roberts would never presume (or want) to change Gorsuch’s votes,” Toobin wrote in The New Yorker. “And the new Justice is casting those just as his sponsors had hoped and his opponents had feared.”