He was supposed to the new Big Bad of the Supreme Court, the Sith lord to replace Darth Scalia. Or its anointed savior, someone worth Republicans stonewalling Obama’s nominee for an entire year, depending on your political stripes.
But Neil Gorsuch is smart and boring, just like I figured. I wrote when he was nominated that Gorsuch is widely well-regarded by court experts and likely to disappoint Trump for the same reason: He hates sloppily written laws, and hates sloppy interpretations of them even more.
The thing is, nobody ever knows exactly what will happen — the nature of the job requires judges to keep their opinions closely guarded until they rule on an issue.
So now that Gorsuch has been a Supreme Court Justice for a month, what have we learned about his approach and how it might affect us? Here’s a quick look, but the shortest answer is: not a lot.
Gorsuch was confirmed by the Senate on April 7, after Republicans abolished the longstanding process that required a minimum bipartisan consensus on nominees. He was sworn in April 10. Since then, the Supreme Court has ruled on less than a dozen cases, three of which were just leaving a lower court’s ruling in place.
- Coventry Health Care of Mo., Inc. v. Nevils
- Goodyear Tire & Rubber Co. v. Haeger
- Manrique v. United States
- Nelson v. Colorado
- McGehee v. Hutchinson*
- Salazar-Limon v. Houston*
- Smith v. Ryan*
- Lewis v. Clarke
- Bolivarian Republic of Venezuela v. Helmerich & Payne Int’l Drilling Co.
- Bank of America Corp. v. Miami
*cases SCOTUS refused to review
Because he is so new, all seven decisions note that Gorsuch “took no part in the consideration or decision of the cases.” So we have no written opinions from him yet, and may not for several months.
But he participated in oral arguments for more than a dozen other cases that will be decided later, asking more questions than new justices typically do. You can skim the transcripts here.
His favorite question is “Where?” As in: where in the law do you see the legal authority to do something, “looking at the plain language” of statutes. He complains of lawyers using “linguistic somersaults” to “get where you want to go.” In this, he sounds very much like Scalia — which is great news for lawyers who can make cases based on laws as written instead of based on what is moral.
Many of his other questions are similarly nitpicky about where to draw lines, or how you distinguish one situation from another. Which is to say, they’re very typical judgelike questions.
He did side with the conservative side of the court in McGehee v. Hutchinson, effectively condemning eight people already on death row in Arkansas. Some liberals are assuming that means he will always take the conservative position on issues, but there’s not much evidence of that. In fact, Gorsuch didn’t give any reason for his vote, and hasn’t voted on anything that could be characterized as a liberal vs. conservative issue yet — the court has been avoiding that since Congress left a really, really long-for-no-valid-reason vacancy.
What the future holds
When the Supreme Court was short a person after Scalia’s death, it tried to avoid controversial cases that were likely to deadlock. (And some people who may have otherwise petitioned the Supreme Court may have avoided doing so.) It would have just wasted everyone’s time because no ruling would be definitive.
With a full bench, the court will likely start coming back to them, a little bit now and more heavily in the fall — and Gorsuch is likely to be the deciding vote in many.
There are several interesting cultural cases the court will consider petitions for in the next week, according to SCOTUSBlog: on gay rights vs. freedom of religion over a wedding cake; over Second Amendment concealed carry rights in California; and multiple cases over warrantless gathering of cell phone data. But there’s not much interesting going on with obvious financial ramifications at the moment.
However, that could change soon. Gorsuch is showing an early commitment to considering as many cases as possible, ditching the common practice of most justices. Nearly all of the justices for the past 30 years share law clerks that review petitions and help decide which cases the court actually takes on. Instead, Gorsuch will have his own clerks review the several thousand of petitions the court gets every year and recommend cases for the less than 200 the court ultimately considers.
When the court starts its new term in the fall, Gorsuch’s decision may help keep important cases from falling through the cracks, and may also expand the number of cases the court takes on.
Some of the already known cases Gorsuch could be a deciding factor on in the future may affect limits on class-action lawsuits and employer-mandated arbitration agreements. We’ll have to wait and see what else he takes an interest in.
Article last modified on August 8, 2017. Published by Debt.com, LLC .