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| © Provided by Slate Retired Supreme Court Justice Anthony Kennedy (left) is presented the 2019 Liberty Medal by Supreme Court Associate Justice Neil Gorsuch at the National Constitution Center on October 27, 2019 in Philadelphia, Pennsylvania. William Thomas Cain/Getty Images |
By Mark Joseph Stern, Slate
When Neil Gorsuch joined the Supreme Court in 2017, he instantly became the most irritating justice on the court. His opinions swelled with purple prose that was both pretentious and faux-folksy. His votes were not just conservative but aggressively reactionary, reflecting overt disdain for progressive precedent. He picked pointless fights with his colleagues, lecturing them about his superior understanding of the law while flaunting his putative purism. Gorsuch obviously saw himself as the second coming of Justice Antonin Scalia, the legal titan whose seat he filled. But Gorsuch had all of Scalia’s self-regard and trollish condescension with none of the wit, lucidity, or erudition that made the conservative icon so beloved. The junior justice wanted to be exalted. In truth, he was just exasperating.
If Gorsuch remains exasperating today, at least give him this: He is exasperating all the right people. In just over three years, Gorsuch has transformed into one of the Supreme Court’s most unpredictable justices. He has swung left on LGBTQ equality, criminal justice, executive power, and tribal rights, confounding Republicans who hoped he’d toe the GOP party line. His opinions have grown less pompous and more pointed, trading aw-shucks smarm for forceful analysis. Chief Justice John Roberts may be the court’s swing vote. But Gorsuch has become its wildcard.
Gorsuch first defected from the conservative bloc in the 2018 decision Sessions v. Dimaya, joining the liberals to hold that a deportation statute was unconstitutionally vague. In his separate concurrence, the justice wrote that judges have a duty to nullify laws that fail to give ordinary people fair notice of the conduct they punish. “Vague laws,” Gorsuch intoned, “invite arbitrary power,” allowing “police and prosecutors” to enforce their own “subjective” sense of what’s forbidden. In the 2019 case United States v. Davis, he joined the liberals to invalidate yet another vague statute, this time penning the majority opinion. “In our constitutional order,” Gorsuch declared this time around, “a vague law is no law at all.” His opinion led Justice Brett Kavanaugh, in dissent, to accuse his colleague of driving the court “off the constitutional cliff.”
It turns out Gorsuch’s left-leaning criminal law decisions were just a warm-up act for the two blockbusters he handed down in 2020. In the first of these, Bostock v. Clayton County, Gorsuch found that the Civil Rights Act’s bar on sex discrimination in the workplace protects LGBTQ people. Or, as his put it succinctly: “An employer who fires an individual merely for being gay or transgender defies the law,” because “it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.” Gorsuch swatted down the dissenters’ argument that the Civil Rights Act could not possibly protect LGBTQ employees because Congress did not contemplate such individuals when it passed the law in 1964.
“Judges,” Gorsuch retorted, “are not free to overlook plain statutory commands on the strength of nothing more than suppositions about intentions or guesswork about expectations.” His logic will ensure that these landmark federal protections extend far beyond employment, to LGBTQ people in housing, health care, education, and more.
In his second blockbuster opinion of the term, McGirt v. Oklahoma, Gorsuch declared that a vast swath of Oklahoma, including most of Tulsa, is a Creek Indian reservation, at least for the purposes of federal criminal law. (The four liberals joined him, while his fellow conservatives dissented.) He reached this conclusion by doing something that the Supreme Court has long resisted: holding Congress to the promises it made to Indian tribes long ago. After forcibly relocating the Creeks to Oklahoma, Congress guaranteed this swath of land to the tribe in perpetuity. It has long ignored that guarantee—but, the justice explained, never formally withdrawn it, and so the courts must honor it.
“On the far end of the Trail of Tears was a promise,” Gorsuch wrote, one the court cannot ignore today. “To hold otherwise,” he concluded, “would be to elevate the most brazen and longstanding injustices over the law, both rewarding wrong and failing those in the right.” (As this passage indicates, Gorsuch’s writing has improved dramatically since those bleak early days when he couldn’t stop blathering about Chesterton.)
At first blush, this string of cases might appear unconnected, rendering Gorsuch’s swing votes somewhat random. And it can seem as if the justice simply courts chaos, a trait that does not fall along the usual ideological spectrum. In one resoundingly liberal opinion, for instance, he suggested that the entire system of supervised release—the federal version of parole—is unconstitutional. In a very different arch-conservative dissent, he implied the many, if not most, federal regulations are illegal. When Gorsuch wrote the opinion requiring unanimous jury verdicts in state courts—another progressive triumph—he acknowledged that his decision would upset thousands of convictions. His response: So what? Sure, the decision might prompt a “tsunami of litigation.” But that repercussion is outweighed by “the interest we all share in the preservation of our constitutionally promised liberties.” The liberal Justice Elena Kagan dissented.
Anarchy, however, is not Gorsuch’s guiding principle. Or at least, it’s not the only one. Instead, the justice has followed the theories of textualism and originalism to new extremes. (Textualism means looking primarily at a statute’s plain text; originalism means looking at the Constitution’s original meaning.) Scalia touted both theories, too. But he tempered them with a philosophy of judicial restraint, the notion that unelected judges should generally defer to the democratic branches. The late justice came of age when the ostensible activism of Chief Justice Earl Warren, as well as Roe v. Wade, persuaded conservatives that courts should exercise less power overall.
Gorsuch came up in a much different milieu. Many conservative attorneys of his generation abandoned judicial restraint, scorning its timidity. They argued that decisions like Roe were wrong not because they intruded upon the democratic process, but because they strayed from the text and original meaning of the Constitution. To right the ship, judges should strive not for minimalism, but for absolute fidelity to the law, wherever it takes them. This approach empowered conservative judges to issue right-wing decisions just as sweeping and disruptive as any of Earl Warren’s.
It also requires an immense amount of confidence. And no one would ever accuse Gorsuch of writing with humility. He dismisses opposing arguments with a flick of the wrist, frequently insinuating that they are too dumb to merit a rejoinder. He expounds the original meaning of the Constitution with the brash certitude of a man just back from a seance with James Madison. He interprets ambiguous statutory language like a prophet elucidating sacred texts. Gorsuch does not vacillate. If he has ever felt uncertain about a ruling, he hides it well. When he tacks far to the right, this approach can be infuriating for progressives. When he slides left, it is exhilarating. In his Bostock opinion, Gorsuch exhibited no doubt that a law passed in 1964 could protect LGBTQ employees, sending Justice Samuel Alito into a self-defeating rage spiral.
In fact, Alito—a fellow member of the conservative bloc—has emerged as Gorsuch’s harshest critic on the court. He flings surprisingly personal insults, deriding Gorsuch’s opinions as “arrogant,” “dangerous,” “revolutionary,” “evasive,” “inexcusable,” and “sullied by ad hominem rhetoric” that contributes “to the worst current trends” of “rational and civil discourse.” Alito seems to take personal offense at Gorsuch’s defections to the left, treating them as a betrayal by the chosen one. The liberal justices, by contrast, welcome Gorsuch into the fold with open arms any time he crosses over. Justice Ruth Bader Ginsburg, the senior-most justice, assigns the majority opinion in any 5–4 decision in which Gorsuch joins the liberals. A canny strategist, Ginsburg keeps giving these decisions to Gorsuch. The four liberals appear willing to sign onto almost anything he cranks out as long as it gets them five votes for the right outcome.
Gorsuch is, in other words, the Supreme Court’s true swing vote. Roberts might cross over more frequently, and this term in the more high-profile cases involving abortion and DACA. But when he does so, he merely inches toward the center, crafting narrow compromises that may lead to future conservative rulings. Gorsuch takes big swings. Compromise is not in his nature; he is a proud agitator who revels in upending expectations. When he veers right, he does not hesitate to plunge into the abyss. But when the law leads him to the left, his unflinching decisions can force the court—and the nation—to live up to its highest ideals.
Read more at Slate
When Neil Gorsuch joined the Supreme Court in 2017, he instantly became the most irritating justice on the court. His opinions swelled with purple prose that was both pretentious and faux-folksy. His votes were not just conservative but aggressively reactionary, reflecting overt disdain for progressive precedent. He picked pointless fights with his colleagues, lecturing them about his superior understanding of the law while flaunting his putative purism. Gorsuch obviously saw himself as the second coming of Justice Antonin Scalia, the legal titan whose seat he filled. But Gorsuch had all of Scalia’s self-regard and trollish condescension with none of the wit, lucidity, or erudition that made the conservative icon so beloved. The junior justice wanted to be exalted. In truth, he was just exasperating.
If Gorsuch remains exasperating today, at least give him this: He is exasperating all the right people. In just over three years, Gorsuch has transformed into one of the Supreme Court’s most unpredictable justices. He has swung left on LGBTQ equality, criminal justice, executive power, and tribal rights, confounding Republicans who hoped he’d toe the GOP party line. His opinions have grown less pompous and more pointed, trading aw-shucks smarm for forceful analysis. Chief Justice John Roberts may be the court’s swing vote. But Gorsuch has become its wildcard.
Gorsuch first defected from the conservative bloc in the 2018 decision Sessions v. Dimaya, joining the liberals to hold that a deportation statute was unconstitutionally vague. In his separate concurrence, the justice wrote that judges have a duty to nullify laws that fail to give ordinary people fair notice of the conduct they punish. “Vague laws,” Gorsuch intoned, “invite arbitrary power,” allowing “police and prosecutors” to enforce their own “subjective” sense of what’s forbidden. In the 2019 case United States v. Davis, he joined the liberals to invalidate yet another vague statute, this time penning the majority opinion. “In our constitutional order,” Gorsuch declared this time around, “a vague law is no law at all.” His opinion led Justice Brett Kavanaugh, in dissent, to accuse his colleague of driving the court “off the constitutional cliff.”
It turns out Gorsuch’s left-leaning criminal law decisions were just a warm-up act for the two blockbusters he handed down in 2020. In the first of these, Bostock v. Clayton County, Gorsuch found that the Civil Rights Act’s bar on sex discrimination in the workplace protects LGBTQ people. Or, as his put it succinctly: “An employer who fires an individual merely for being gay or transgender defies the law,” because “it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.” Gorsuch swatted down the dissenters’ argument that the Civil Rights Act could not possibly protect LGBTQ employees because Congress did not contemplate such individuals when it passed the law in 1964.
“Judges,” Gorsuch retorted, “are not free to overlook plain statutory commands on the strength of nothing more than suppositions about intentions or guesswork about expectations.” His logic will ensure that these landmark federal protections extend far beyond employment, to LGBTQ people in housing, health care, education, and more.
In his second blockbuster opinion of the term, McGirt v. Oklahoma, Gorsuch declared that a vast swath of Oklahoma, including most of Tulsa, is a Creek Indian reservation, at least for the purposes of federal criminal law. (The four liberals joined him, while his fellow conservatives dissented.) He reached this conclusion by doing something that the Supreme Court has long resisted: holding Congress to the promises it made to Indian tribes long ago. After forcibly relocating the Creeks to Oklahoma, Congress guaranteed this swath of land to the tribe in perpetuity. It has long ignored that guarantee—but, the justice explained, never formally withdrawn it, and so the courts must honor it.
“On the far end of the Trail of Tears was a promise,” Gorsuch wrote, one the court cannot ignore today. “To hold otherwise,” he concluded, “would be to elevate the most brazen and longstanding injustices over the law, both rewarding wrong and failing those in the right.” (As this passage indicates, Gorsuch’s writing has improved dramatically since those bleak early days when he couldn’t stop blathering about Chesterton.)
At first blush, this string of cases might appear unconnected, rendering Gorsuch’s swing votes somewhat random. And it can seem as if the justice simply courts chaos, a trait that does not fall along the usual ideological spectrum. In one resoundingly liberal opinion, for instance, he suggested that the entire system of supervised release—the federal version of parole—is unconstitutional. In a very different arch-conservative dissent, he implied the many, if not most, federal regulations are illegal. When Gorsuch wrote the opinion requiring unanimous jury verdicts in state courts—another progressive triumph—he acknowledged that his decision would upset thousands of convictions. His response: So what? Sure, the decision might prompt a “tsunami of litigation.” But that repercussion is outweighed by “the interest we all share in the preservation of our constitutionally promised liberties.” The liberal Justice Elena Kagan dissented.
Anarchy, however, is not Gorsuch’s guiding principle. Or at least, it’s not the only one. Instead, the justice has followed the theories of textualism and originalism to new extremes. (Textualism means looking primarily at a statute’s plain text; originalism means looking at the Constitution’s original meaning.) Scalia touted both theories, too. But he tempered them with a philosophy of judicial restraint, the notion that unelected judges should generally defer to the democratic branches. The late justice came of age when the ostensible activism of Chief Justice Earl Warren, as well as Roe v. Wade, persuaded conservatives that courts should exercise less power overall.
Gorsuch came up in a much different milieu. Many conservative attorneys of his generation abandoned judicial restraint, scorning its timidity. They argued that decisions like Roe were wrong not because they intruded upon the democratic process, but because they strayed from the text and original meaning of the Constitution. To right the ship, judges should strive not for minimalism, but for absolute fidelity to the law, wherever it takes them. This approach empowered conservative judges to issue right-wing decisions just as sweeping and disruptive as any of Earl Warren’s.
It also requires an immense amount of confidence. And no one would ever accuse Gorsuch of writing with humility. He dismisses opposing arguments with a flick of the wrist, frequently insinuating that they are too dumb to merit a rejoinder. He expounds the original meaning of the Constitution with the brash certitude of a man just back from a seance with James Madison. He interprets ambiguous statutory language like a prophet elucidating sacred texts. Gorsuch does not vacillate. If he has ever felt uncertain about a ruling, he hides it well. When he tacks far to the right, this approach can be infuriating for progressives. When he slides left, it is exhilarating. In his Bostock opinion, Gorsuch exhibited no doubt that a law passed in 1964 could protect LGBTQ employees, sending Justice Samuel Alito into a self-defeating rage spiral.
In fact, Alito—a fellow member of the conservative bloc—has emerged as Gorsuch’s harshest critic on the court. He flings surprisingly personal insults, deriding Gorsuch’s opinions as “arrogant,” “dangerous,” “revolutionary,” “evasive,” “inexcusable,” and “sullied by ad hominem rhetoric” that contributes “to the worst current trends” of “rational and civil discourse.” Alito seems to take personal offense at Gorsuch’s defections to the left, treating them as a betrayal by the chosen one. The liberal justices, by contrast, welcome Gorsuch into the fold with open arms any time he crosses over. Justice Ruth Bader Ginsburg, the senior-most justice, assigns the majority opinion in any 5–4 decision in which Gorsuch joins the liberals. A canny strategist, Ginsburg keeps giving these decisions to Gorsuch. The four liberals appear willing to sign onto almost anything he cranks out as long as it gets them five votes for the right outcome.
Gorsuch is, in other words, the Supreme Court’s true swing vote. Roberts might cross over more frequently, and this term in the more high-profile cases involving abortion and DACA. But when he does so, he merely inches toward the center, crafting narrow compromises that may lead to future conservative rulings. Gorsuch takes big swings. Compromise is not in his nature; he is a proud agitator who revels in upending expectations. When he veers right, he does not hesitate to plunge into the abyss. But when the law leads him to the left, his unflinching decisions can force the court—and the nation—to live up to its highest ideals.
Read more at Slate
