The new justice had clearly done his homework.
On his first day hearing arguments at the Supreme Court, Neil Gorsuch was active and engaged, sharp and funny, an immediate and forceful presence. And I got a glimpse of how that presence could shape the Court for many years to come.
I was there almost by accident, one that began with a question: ‘Have you ever watched oral arguments at the Supreme Court?’ It came from former acting Solicitor General Neal Katyal, a frequent advocate before the Supreme Court and occasional guest on the NewsHour. In March, I interviewed him on our set as part of a debate on President Donald Trump’s proposed travel ban.
Off camera, we spoke of Gorsuch; Katyal had angered many of his liberal friends by offering a public endorsement. We also spoke of Katyal’s current work in private practice, which included a number of cases heading for the Supreme Court. That’s when he asked if I’d ever attended oral arguments. I started to respond: “Of course, I have …” before stopping myself. I must have, right?
I’ve reported on countless decisions over the years. I’ve interviewed Supreme Court justices. I’ve listened to arguments (audio tapes of some major cases have been released). I run into justices from time to time in informal settings. I even attended law school for two years (a long story). It all felt familiar to me. And yet – in a moment of confusion – I suddenly realized I’d never had the direct experience of seeing it all in person.
So my answer became: ‘No, Neal, I have not attended oral arguments at the Supreme Court.’ He immediately invited me to come as his guest to the next case he was arguing. Neither of us knew this would coincide with Gorsuch’s first day.
If there was any lingering anger or resentment from the bitter nomination battle, it was not apparent Monday. Chief Justice Roberts briefly welcomed Gorsuch and wished him “a long and happy career in our common calling.” Gorsuch thanked Roberts and his new colleagues. And then it was quickly on to business. It took all of 11 minutes for Gorsuch to join in. Then, he stayed in.
By my inexact reckoning, he was the most active justice in the first case heard that day. You may know how this works: Attorneys for each side stand before the court to lay out their arguments. Justices can and do jump in at any time to pepper attorneys with questions, comments, jibes. (Quite a job – lifelong tenure and carte blanche to interrupt at will. Of course, the job comes with a few rather large responsibilities as well). On this morning, several justices jumped in with a question or two – Anthony Kennedy, Ruth Bader Ginsburg, John Roberts, Samuel Alito and Elena Kagan. Then the new justice spoke for the first time, asking question after question in a back and forth that went on for several minutes.
It was interesting and illuminating theater – in the best sense. Gorsuch carefully parsed particular sections and terms. At one point he worried aloud about going on too long – “I’m sorry for taking up so much time.” But later, when an attorney said that his side “was not asking the court to break any new ground” in interpreting a statute, Gorsuch interrupted with a zinger: “No, just to continue to make things up.”
There was also disarming humor. After a back and forth with Gorsuch, an attorney suddenly seemed to realize he and the justice were on the same page: “I think I am emphatically agreeing with you.” To which Gorsuch replied: “I hope so” — bringing laughter from the hall.
Justice Neil Gorsuch officially joined the bench at the Supreme Court Monday, returning the court to its full strength for the first time since the death of Justice Antonin Scalia. Marcia Coyle of The National Law Journal joins Jeffrey Brown to discuss what’s on the docket and how the Supreme Court’s newest member could influence the ideological balance in the long term.
The case itself, Perry v. Merit Systems Protection Board — not the one Neal Katyal was involved in; he came later — will not go down in legal history or make front page news. It was an extremely complicated and technical argument about the proper legal forum in which a certain kind employment discrimination case should be heard. How complicated and technical? Far beyond my understanding. But, as it turned out – and this was the pleasure of watching the arguments unfold – the case was also baffling to the justices.
Several turned to humor to combat the agony of the confounding and conflicting statute before them. Justice Alito called it “unbelievably complicated” and made us all feel better about our own feeble grasp of the proceedings by telling a lawyer that the only clear thing here was how very unclear it all was. Whoever wrote this statute, Alito added, “takes pleasure in pulling wings off of flies.” Ouch.
Justice Sotomayor got the best laugh of the morning when, pursuing a line of reasoning offered by one lawyer, she said aloud: “If we go down your route, and I’m writing that opinion” … pause… “which I hope I’m not.” The laughter came from the audience as well as the other justices. A clear message: Please, Chief Justice Roberts, don’t give me this assignment!
Might it fall to the junior justice? If so, he will no doubt follow a theme he sounded in the oral argument,one court watchers can expect to hear for years (perhaps decades) to come: “Wouldn’t it be easier,” Gorsuch asked a government lawyer, “if we just followed the plain text of the statute? What am I missing?” The “plain text” – the “go-to” for a constitutional “textualist” in the mold of the late Justice Antonin Scalia, the man Gorsuch is replacing. In divisive, emotional cases of huge national importance, this approach has been and will continue to be hotly debated: Is the original text really so plain and clear? What about all that’s happened since the text was written? What about the difficulty of applying this centuries-old text to our own time?
Perhaps Gorsuch – or whoever does get the assignment – can find a clear path into the text involved in Perry v. Merit Systems Protection Board. All I can say is: good luck.