Supreme Court Justice Neil Gorsuch came out swinging Monday in an inaugural oral argument that showed the rookie conservative’s considerable self-confidence – and some of his judicial inclinations.
Displaying a seamless blend of preparation, persistence and humor, Gorsuch immediately cast himself into the center of a highly technical case. Over the course of an hour, Gorsuch’s performance hinted at what might be expected from the 49-year-old Colorado native for several decades to come.
“I think I am maybe emphatically agreeing with you,” attorney Christopher Landau told Gorsuch at one point.
“I hope so,” Gorsuch replied.
“I hope so, too,” Landau said.
And in what sounded like a tribute to his predecessor, the late Justice Antonin Scalia, Gorsuch seemed to stress the importance of sticking to the black-and-white words written by lawmakers. As practiced by Scalia during his three decades on the Supreme Court, this conservative approach is sometimes summed up as “textualism.” It is related to “originalism,” as a constrained way of interpreting the Constitution.
“Wouldn’t it be a lot easier if we just followed the plain text of the statute?” Gorsuch asked at another point. “What am I missing?”
Illustratively, Gorsuch then proceeded to question the precise meaning of the phrase “subject to.”
Nobody who is not a lawyer, and no ordinary lawyer, could read these statutes and figure out what they are supposed to do.
Justice Samuel Alito
Gorsuch previously served more than a decade on the Denver-based 10th U.S. Circuit Court of Appeals, giving him considerable experience with oral arguments, albeit with a lower public profile and on panels that usually consisted of only three judges.
Although the Supreme Court does not allow television cameras, several dozen reporters were present to see how Gorsuch fit into the court, which had been shorthanded for more than 14 months following Scalia’s death.
For Gorsuch, beyond the merits of the individual cases, the three oral arguments Monday were an opportunity to showcase his active engagement and civil, nonthreatening demeanor.
Although Gorsuch has been on the Supreme Court since being sworn in last Monday, the oral argument in the otherwise-forgettable case called Perry v. Merit Systems Protection Board made history, as it was his first as an associate justice. He did not actively participate with the other eight justices in a private conference convened Thursday to review possible cases.
Precisely at 10 a.m Monday, Gorsuch joined his new colleagues in appearing from behind the regal burgundy curtains to take his seat. Members of the audience saw him sitting on the far right, next to his ideological opposite, the liberal Justice Sonia Sotomayor. He smiled as Chief Justice John Roberts Jr. briefly welcomed him and wished him “a long and happy career in our common calling.”
Gorsuch offered his own brief thanks and then settled into the job.
The first case had nothing to do with the feverish issues like abortion, gun rights or corporate influence that had dominated Gorsuch’s confirmation battle, in which he prevailed by a 54-45 vote after Senate Republicans changed the rules governing filibusters. An upcoming argument Wednesday, involving Missouri’s refusal to fund a church’s playground improvements, will present Gorsuch with a more far-reaching and politically charged social issue.
The Monday case, though, did reflect the commonplace sort of conflict that dominates the court that decided 48 percent of all cases by a 9-0 last term.
The case, brought by a longtime U.S. Census Bureau worker against the Merit Systems Protection Board, revolved around a highly technical question about which court should hear the worker’s appeal. Speaking for all, Justice Samuel Alito called the law in question “unbelievably complicated” and difficult to parse.
“Who wrote this statute, somebody who takes pleasure pulling wings off flies?” Alito asked, prompting general laughter.
Gorsuch waited only about seven minutes before he asked his first question, following four of his more senior colleagues. He pressed Landau, the worker’s attorney, with a series of setups and follow-ups that extended longer than many at the high court.
“I’m sorry for taking up so much time,” Gorsuch said, before continuing a bit longer.
The court imposes no particular order in which justices can ask questions. Gorsuch’s seatmate Sotomayor, although still a relatively junior justice, was second only to Scalia last term in the average number of questions asked, according to data compiled by SCOTUSblog.
Justice Clarence Thomas, in keeping with his customary practice, was the only justice not to speak or to ask questions during the oral argument. A decision in the case is expected by the end of June.