Federal Courts and Nominations

Supreme Court’s newest justice sticks to ‘plain language’

By Richard Wolf

WASHINGTON — If two weeks can offer a window into what might be three or four decades on the Supreme Court, Justice Neil Gorsuch comes as advertised.

Heralded by President Trump and conservative backers as a jurist who opposes judicial activism, Gorsuch showed during oral arguments in 13 cases that he sticks to the letter of the law.

From his first day on the bench, when he complained about lawyers and judges making up statutory provisions, to his most recent, when he bemoaned “linguistic somersaults,” the 49-year-old Coloradan framed each debate by the laws and precedents involved.

“I would have thought cases of discrimination under federal discrimination statutes are cases of discrimination under federal discrimination statutes, and not civil service disputes,” Gorsuch said, seeking to parse differences that have become ambiguous over time.

Later, to drive home his belief that laws written by Congress should be taken literally, not interpreted broadly, he said, “‘subject to’ can also mean subject to.”

Gorsuch’s presence on the court has reinstated the conservative majority lost when Justice Antonin Scalia died in February 2016. In his first weeks on the court, it was he, more than Chief Justice John Roberts and Justices Anthony Kennedy, Samuel Alito and Clarence Thomas, who most often emphasized the importance of written texts and constitutional principles.

Leonard Leo, executive vice president of the conservative Federalist Society, which helped to create the list of 21 potential nominees from which Trump chose Gorsuch, said the former federal appeals court judge has shown he is “someone who adheres to the text of laws because of a deep hesitation to extend the judicial power to choices that are best left to politicians and the people.”

While two weeks aren’t enough to form a judgment, liberal court-watchers are far more wary. Elizabeth Wydra, president of the Constitutional Accountability Center, says Gorsuch comes to the court as a “selective originalist — giving pride of place to certain parts of the Constitution, while giving an extremely crabbed view of the substantive fundamental rights protected, in particular, by the Constitution’s later amendments, including the 14th Amendment and its broad guarantee of equality for all.”

The past two-week period was the most robust sitting of the court’s term, forcing Gorsuch to get up to speed on a wide range of constitutional and statutory cases just a week after being sworn in. At the same time, the court was at the center of Arkansas’s effort to execute eight convicted murderers over 11 days, ultimately green-lighting four lethal injections and blocking one (three others were blocked by lower courts). At one point, Gorsuch sided with the court’s conservative justices in refusing to delay several executions while considering procedural challenges.

Church/state case

The biggest case he heard was a Lutheran church’s challenge to its exclusion from a Missouri program that awarded grants for playground improvements to non-profit groups on a competitive basis. Although the church placed fifth and 14 grants were awarded, state officials said Missouri’s constitution forbids giving public funds to religious institutions.

The church sued on the basis of the U.S. Constitution’s free exercise clause, contained in the First Amendment, and the equal protection clause of the 14th Amendment. The state said it could exclude the church in part because the program was selective, rather than open to all comers. But Gorsuch couldn’t find that distinction in the Constitution.

“How is it that discrimination on the basis of religious exercise is better in selective government programs than general programs?” Gorsuch asked. “How do we draw the line between selective and general? One could seem to play with that line forever.”

Like many of his colleagues, Gorsuch also exhibited a distrust of the federal government. In a case involving the Securities and Exchange Commission’s penalties against an investment fund manager for misappropriating investors’ funds, he asked where that authority came from.

“There’s no statute governing it. We’re just making it up,” Gorsuch said, repeating a favorite phrase from the day before.

Twice in two weeks, the new justice’s devotion to texts and definitions appeared to rub up against his predecessor as junior justice, Elena Kagan.

In the first example, Gorsuch contended that decades of court decisions permitting federal district courts to handle combined discrimination and civil service challenges did not have a sound legal basis. Kagan said that to ignore those rulings “would be a kind of revolution — I mean, to the extent that you can have a revolution in this kind of case.”

In the second example, Gorsuch suggested a Supreme Court ruling in 1985 that defendants have a right to an independent mental health expert should be understood to include one appointed by the court, since defense lawyers originally asked for either. That would confine the justices’ discretion to the specific “question presented.”

“That would be quite something,” Kagan said. “I think that that would be a shocking way to interpret this court’s opinions.”

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