Wednesday, February 9, 2022

What's with Gorsuch?

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.

Relatedly, it has become pretty well known among Supreme Court watchers that Gorsuch's colleagues find him annoying, self-righteous, arrogant, and not nearly as bright as he apparently thinks. One might say insufferable. Yes, I'll say it.

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?

In Roberts's previous opinion that Gorsuch disparaged, the Chief Justice had explained that there are activities, like church attendance, "where large groups of people gather in close proximity for extended periods of time." And there are "dissimilar activities," which are understandably treated more leniently, "in which people neither congregate in large groups nor remain in close proximity for extended periods." The latter would, of course, include Gorsuch's picking up a bottle of wine. But, either disregarding or missing the Chief Justice's obvious distinction, Gorsuch concluded his solo opinion--i.e., no one joined him--by rephrasing his complaint about "edicts that reopen liquor stores and bike shops but shutter churches, synagogues, and mosques." Cute, but hardly analytical.
[The majority opinion, by contrast, did discuss secular activities that are more similar to church attendance.]

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.

Take his opinion for the Court in Bostock v. Clayton County (2020). Writing for the 6 to 3 majority--the 4 liberals at the time plus Roberts and Gorsuch--he concluded that the 1964 Civil Rights Act's prohibition against sex discrimination in employment necessarily prohibits discrimination against LGBTQ persons. It would have been enough for Gorsuch to simply rely on indisputable logic. That is, if a male employee romantically involved with a woman gets to keep his job, but a female employee so involved with a woman gets fired, the only difference is the employee's sex. Clear enough? Well, Gorsuch, a self-avowed disciple of the late Antonin Scalia, felt compelled to insist that the result was also dictated by originalism--i.e., the law's meaning when originally enacted.

Gorsuch spent most of his opinion arguing that "the ordinary public meaning of the statute’s language at the time of the law’s adoption" prohibited sexual orientation discrimination. The ordinary public meaning when the law was adopted in 1964 included sexual orientation? That's what Congress and the American people were thinking when discrimination on the basis of sex was prohibited almost 60 years ago?

In his dissenting opinion, Justice Samuel Alito threw Scalia's originalism right back at Gorsuch. Quoting Gorsuch's idol, Alito argued that a law's words should be given the meaning that "they conveyed to reasonable people at the time they were written." And as Alito explained, "the concept of discrimination because of 'sex'" hardly conveyed "discrimination because of 'sexual orientation' or 'gender identity'” at the time the Civil Rights Act was enacted in 1964. Gorsuch's effort to argue otherwise was "preposterous." Moreover, Gorsuch's updating the statute to reflect current values, as Alito noted, "actually represents a theory of statutory interpretation that Justice Scalia excoriated."

[An unsurprising disclosure: I do not subscribe to Scalia's interpretive methodology of originalism--whether argued by Gorsuch or Alito or Scalia himself. But I certainly do favor the result in the Bostick case, as well as the analysis on the basis of simple logic that does accord with current values and basic decency.]

Well, just maybe, Gorsuch was valiantly, if unpersuasively, enlisting originalist interpretation in the service of equal rights for LGBTQ persons because he so fervently supports them. Unfortunately. a consideration of his opinions in other cases quickly and firmly dispels any such wishful thinking.

Take his opinion in Pavan v. Smith (2017). At issue was the disparate treatment in Arkansas of same-sex married couples involving their children's birth certificates. The name of a mother's male spouse would be listed as a parent, regardless of any biological relationship to the child. But the same treatment was not extended to same-sex couples. The majority's unsigned per curiam opinion summarily invalidated the discriminatory treatment. The Court simply reaffirmed its right-to-marry decision in Obergefell v. Hodges (2015) which held that same-sex couples were entitled to marriage, and were so “on the same terms and conditions as opposite-sex couples.”

Gorsuch dissented. His complaint? While "Obergefell addressed the question whether a State must recognize same-sex marriages," he wrote, "nothing in Obergefell spoke (let alone clearly)" about birth certificates. To be fair, he specified a "birth registration regime based on biology," such as the one in Arkansas. But "this particular regime’s exceptions," as Gorsuch benignly referred to them, didn't make any difference to him. Not even the particular exception for non-biological parents at issue in this case, which just happened to be available to opposite-sex couples, but not to similarly situated same-sex couples. So was that lost on Gorsuch? Or did this unequal treatment simply not matter to him?
[Notably, even Chief Justice Roberts, who had dissented two years earlier in Obergefell, joined the majority opinion.]

Then there is Gorsuch's separate opinion in the cakeshop case. In Masterpiece Cakeshop v. Colorado Civil Rights Commission (2018), the Court--with a combination of conservative and liberal justices in the majority--ruled that Colorado had conducted an unfairly hostile hearing when it found the religiously objecting baker to be guilty of illegal discrimination for refusing to make a cake to celebrate a same-sex couple's wedding. In short, the majority of justices simply rejected the state's unfair hearing. They explicitly made clear that they were not approving the baker's--or any other business's--discrimination against same-sex couples. 

Gorsuch wasn't happy. He wasn't pleased with any suggestion that the baker had engaged in discrimination at all. He had to write his own concurring opinion. That baker, Gorsuch argued, "would have refused to create a cake celebrating a same-sex marriage for any customer, regardless of his or her sexual orientation." What? So there's no discrimination here because the baker wouldn't make a cake celebrating a same-sex wedding for an opposite-sex couple's wedding either?

Maybe Gorsuch didn't really mean that. But he repeated his argument. "Any suggestion that [the baker] was willing to make a cake celebrating a same-sex marriage for a heterosexual customer," Gorsuch noted, "would simply mistake the undisputed factual record." So he really was saying that. The baker wouldn't make a same-sex cake for gay or straight customers.

The point Gorsuch was clumsily trying to make was that the baker simply didn't want to express a certain message--i.e., a message approving same-sex marriage. (BTW, Gorsuch's senior colleague, Justice Thomas, made that argument much more clearly, in his own concurring opinion, in which he framed the issue in the case as one involving expressive freedom. Not sure why Gorsuch felt compelled to write another opinion trying to explain the same thing.

But whether the issue in the case was to be framed as involving discrimination or expressive freedom, Gorsuch himself could not deny that the baker's refusal necessarily resulted in the unequal treatment of same-sex customers. "To be sure," he admitted, the baker's "conduct promised the effect of leaving a customer in a protected class unserved." Well yes, isn't that the point? 

Not to Gorsuch. He just couldn't get passed the apparently brilliant decisiveness of his own argument. He repeated it again: "the baker [in this case] would have refused to sell a cake celebrating same-sex marriage to a heterosexual customer."

Does that sound like a justice opposed to sexual orientation discrimination? A justice sympathetic to LGBTQ rights? In this Colorado cakeshop case or in the Arkansas birth certificate cake?

Insisting on going maskless on the bench. Instructing senior colleagues how to do their jobs. The "snarky tone oozing disrespect." The "unmistakably parental tone." The "prickly" behavior. Accusing the Chief Justice of being less than honest. Equating the conditions of church attendance with picking up a bottle of wine. Insisting that sex discrimination was publicly understood to include sexual-orientation discrimination in 1964. Arguing that equal rights for same-sex married couples did not extend to equal treatment with birth certificates. Arguing that refusing to serve a same-sex couple in celebrating their wedding was not discriminatory.

Okay, what's with Gorsuch?

Perhaps it's not much more than what a renowned, and somewhat conservative, Supreme Court scholar said to me not long after Gorsuch was appointed to fill the Scalia vacancy on the Court. "I didn't always agree with Scalia, but he was always nice to me and he was brilliant." Then he added, "But Gorsuch is a dummy."