As widely reported, Justice Neil Gorsuch has decided to go maskless on the bench. Everyone else on the Court has been wearing a mask. Well, we can't say that about Sonia Sotomayor. She has avoided the bench and participated in oral arguments remotely. Notably, she is a diabetic. Good enough reason to keep her distance from the unmasked colleague.
Actually, none of this is new. Shortly into his tenure, Court watchers described Gorsuch as an impudent upstart who was preaching to his veteran colleagues. He quickly took to telling them that he, not they, understood the role of a Supreme Court Justice. As one observer reported about an early Gorsuch opinion, "He instructed his senior colleagues, who collectively have a total of a hundred and forty years’ experience on the Court, about how to do their jobs." [See, How Badly Is Neil Gorsuch Annoying the Other Supreme Court Justices? by Jeffrey Toobin, The New Yorker, September 29, 2017.]
Another observed that "He’s the new kid in class with his hand always up. He is in his colleagues’ faces pointing out the error of their ways, his snarky tone oozing disrespect toward those who might, just might, know what they are talking about." [See, Trump’s Life-Tenured Judicial Avatar, by Linda Greenhouse, New York Times, July 6, 2017.]
Several years into his tenure on the Court, Gorsuch remains just as smug. Dissenting last year against the Chief Justice in "an unmistakably parental tone," Gorsuch "scolded the majority." John Roberts' opinion for the Court, Gorsuch sneered, "says so little about the Constitution’s terms because so little can be said that might support its ruling.” [See, Neil Gorsuch Couldn’t Stop Complaining About the Rest of the Justices Today, by Elura Nanos, Law & Crime, Mar 25th, 2021.]
As one long-time Court watcher, well-known for her inside sources, put it recently, "Gorsuch, from the beginning of his tenure, has proved a prickly justice, not exactly beloved even by his conservative soulmates on the court." [See, Gorsuch didn't mask despite Sotomayor's COVID worries, leading her to telework, by Nina Totenberg, NPR, January 18, 2022.]
Gorsuch seems so cocksure of his own perspectives. Less pompous and more perceptive Justices understand how difficult and close the legal questions typically are that confront the Court. There are, almost always, strong legal arguments supporting each side of the controversies that come before the Court. But Gorsuch, even when he agrees with a result reached by his colleagues, often feels compelled to write separately to instruct them, as well as any Justices on the opposing side, of his own superior and certain description of the case and analysis of the issues. These separate writings are oftentimes snide, and not nearly as persuasive as the leading majority or dissenting opinions.
Take the case where the Court struck New York's pandemic restrictions on church attendance. [Roman Catholic Diocese v. Cuomo (2021).] The unsigned per curiam opinion for the majority was measured and, even if one disagreed, thoughtful and certainly arguable. And yet, Gorsuch couldn't help himself. Despite his agreement with the majority decision to invalidate the state's restrictions, he had to write his own opinion, taking potshots at Chief Justice Roberts who dissented in the case. He accused the Chief Justice of "a serious rewriting of history" about Roberts's reliance on the 1905 Jacobson landmark in a recent opinion, supporting similar pandemic restrictions in California. [In that 100 plus-year-old landmark, Jacobson v. Massachusetts, the Court had upheld a mandate for smallpox vaccinations against constitutional "liberty" challenges.]
The Chief Justice, perceptibly irritated with his junior colleague, responded to "One solo concurrence." Roberts's previous reliance on Jacobson, he reminded Gorsuch, was for an axiomatic proposition that “[o]ur Constitution principally entrusts ‘[t]he safety and the health of the people’ to the politically accountable officials of the states." "It is not clear," the Chief Justice added, "which part of this lone quotation [the unnamed Gorsuch] finds so discomfiting."
Gorsuch also seemed impressed with his own proof of religious discrimination in the New York restrictions. Some non-church activities were treated more favorably than religious ones, according to Gorsuch, for mere "secular convenience." He variously emphasized, for example, that, under the state's restrictions, "it may be unsafe to go to church, but it is always fine to pick up another bottle of wine." Apples and oranges anyone?
The point is not that the decision reached by the majority and Gorsuch was legally wrong--remember, these cases are close. Rather, it is Gorsuch's arrogant certainty in his own less-than-compelling arguments.
The point is likewise not about Gorsuch's taking politically conservative positions. Even when he takes positions that political liberals would favor, he can't seem to avoid the self-assured certainty in rather lame--and unnecessary--legal analysis.