Justice Gorsuch Finds His 'Easier' Solution Has Few Takers On 1st Day

Apr 17, 2017
Originally published on April 17, 2017 8:31 pm

With a nasty and partisan confirmation battle behind him, Justice Neil Gorsuch took his seat on the nation's highest court on Monday and quickly proved himself to be an active, persistent questioner.

As the court buzzer sounded, Gorsuch emerged from behind the red velvet curtains with his eight colleagues and took his seat at the far right of the bench, no pun intended. (That's where the most junior justice sits, regardless of his or her politics.)

Despite his white hair, Gorsuch looked for all the world like a kid on his first day of high school, proud to be with the big guys, and sitting tall, with a tiny grin on his face.

Chief Justice John Roberts welcomed Gorsuch to "our common calling." Then it was off to the races with three cases interesting only to true legal nerds.

Indeed, the justices were the liveliest looking people in the courtroom, though Justice Samuel Alito at one point could be seen eyes closed, rocking gently in his high-backed chair.

All three cases involved technical and convoluted points of law that, to say the least, are not made for easy or interesting translation. But the newest justice was not shy.

Eleven minutes into the morning session, he asked a string of questions in a case involving which court or courts should hear discrimination and civil service claims brought by government employees.

Gorsuch repeatedly suggested it would be "a lot simpler" or "a lot easier if we just follow the text of the statute." But as the lawyers on both sides and other justices pointed out, the statute has multiple provisions that are interdependent, and nothing about them is simple or easy.

"This is unbelievably complicated," lamented Alito. "The one thing about this case that seems perfectly clear to me is that nobody who's not a lawyer — and no ordinary lawyer — could read these statutes and figure out what they are supposed to do."

"Who wrote this statute?" he asked plaintively. "Somebody who takes pleasure out of pulling the wings off flies?"

Justice Sonia Sotomayor seemed to agree.

"If we go down your route, and I'm writing the opinion — which I hope I'm not," Sotomayor said while glancing in the direction of Chief Justice Roberts, who generally assigns the opinions.

At this point, Gorsuch again suggested the simple solution is to just read the words in the statute, but Gorsuch had a relatively novel idea of what a statute means when it says to apply one provision "subject to" another provision of the law.

Justice Elena Kagan noted that the court has had a contrary interpretation for decades. To adopt a new interpretation, she said, would be "a kind of revolution ... to the extent you can have a revolution in this kind of case."

Gorsuch was a less enthusiastic participant in the next two arguments, but he again focused on the "plain language" of the statutes in his questioning. In the second case, involving who can intervene in a property rights case, Gorsuch asked no questions of the lawyer on one side, Neal Katyal, who had testified for him at his confirmation hearing.

Gorsuch did not have much time to prepare for the 13 cases to be argued over the next two weeks.

He was sworn in on April 10, leaving him a week to prepare for the current and final round of cases of this Supreme Court term. Such short turnaround time is not uncommon, though hardly desirable.

Chief Justice Roberts had six days to prepare after his swearing-in. Justice Alito had three weeks. Justice Anthony Kennedy had four days. Justice Clarence Thomas, 10 days. And Justices Ruth Bader Ginsburg, Stephen Breyer, Sotomayor and Kagan all took their oaths in August, so they had about two months to prep for their first oral arguments.

Though already a justice, Gorsuch did not participate last week in the court's weekly conference at which the eight not only discuss and vote on previously argued cases but decide which cases to hear in the future. Gorsuch would not have been eligible to vote on cases that were heard before he was sworn in, but he could have voted and will vote on which cases to hear in the future.

There are about 10 cases apparently being held, likely awaiting a decisive vote from Gorsuch on whether to grant review.

It takes the votes of four justices to agree to hear a case; the speculation is that some of the cases still in the queue need one more vote to get the four needed for review.

Intern Lauren Russell contributed to this report.

Copyright 2017 NPR. To see more, visit http://www.npr.org/.

ROBERT SIEGEL, HOST:

Neil Gorsuch took his seat on the nation's highest court today. He quickly proved himself to be an active, persistent questioner. NPR legal affairs correspondent Nina Totenberg reports.

NINA TOTENBERG, BYLINE: Gorsuch emerged from behind the red velvet curtains with his eight colleagues and took his seat at the far right of the bench where the court's most junior justice always sits, whatever his politics. Despite his white hair, Gorsuch looked for all the world like a kid on his first day of high school, proud to be with the big guys and sitting tall with a tiny grin on his face.

Chief Justice John Roberts welcomed Gorsuch to, quote, "our common calling." And then it was off to the races with three cases interesting only to true legal nerds. Indeed the justices may have been the liveliest looking people in the courtroom, though Justice Samuel Alito at one point could be seen eyes closed, rocking gently in his high-backed chair.

All three cases involved technical and convoluted points of law that, well, to say the least, are not made for radio. Eleven minutes into the morning session, Gorsuch asked a string of questions in a case involving which court or courts should hear discrimination and civil service claims brought by government employees. Gorsuch repeatedly suggested it would be, quote, "a lot simpler," or, quote, "a lot easier if we just follow the text of the statute." But as the lawyers on both sides and other justices pointed out, the statute has multiple provisions. They're interdependent. And nothing about them is simple or easy.

This is unbelievably complicated, lamented Justice Alito. The one thing to me that's perfectly clear about this case is that nobody who's not a lawyer and no ordinary lawyer could read these statutes and know what they're supposed to do. Who wrote this statute, somebody that takes pleasure out of pulling the wings off of flies?

Justice Sonia Sotomayor seemed to agree, at one point telling counsel, if we go down your route and I'm writing the opinion - which I hope I'm not - Justice Gorsuch at this point again suggested the simple solution is just to read the words in the statute. But Gorsuch had a relatively novel idea of what a statute means when it says to apply one provision of the law subject to another.

Justice Elena Kagan noted that the court has had a contrary interpretation for decades. To adopt a new interpretation, she said, would be, quote, "a kind of revolution to the extent you can have a revolution in this kind of case," she added wryly.

Nina Totenberg NPR News, Washington.

(SOUNDBITE OF PRESERVATION HALL JAZZ BAND'S "THAT'S IT!") Transcript provided by NPR, Copyright NPR.