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Active — and comfortable — first day for Gorsuch

April 18, 2017 by Lyle Denniston

 

A very good test for a rookie on the Supreme Court is how well a new Justice can handle a deeply complex case that only a professor of legal arcana could love. On Monday, the court actually heard three mind-twisting cases, back to back, and the occupant of the most junior seat on the bench – Justice Neil M. Gorsuch – displayed frequently how he had spent the seven days since he took his oaths of office.

He obviously had been boning up, it was clear, and it showed on his first day on the bench. Consider just briefly what those three cases were about:

First up: how to sort out when a federal employee can pursue an on-the-job grievance: inside the worker’s own agency, at a government review board, at a federal trial court, or at a specialized federal appeals court – or maybe all of them? (That was clearly the toughest of the day: Justice Samuel A. Alito, Jr., blurted painfully: “Who wrote this statute?” And Justice Sonia Sotomayor candidly expressed a hope that she would not be assigned to write the decision.)

Second up: if someone with a legal grievance wants to jump into someone else’s federal lawsuit, must that party prove that it had all the qualifications that the Constitution’s Article III requires of the party first suing? What difference does it make if getting involved is automatic or only by permission?

And third up (after a merciful hour’s break for lunch): if a party is involved in a class-action lawsuit, but chooses to pull out of it, how much time can elapse and what conditions must align before that party is “forever barred” from filing its own lawsuit on the same claim?

Throughout it all, Justice Gorsuch was animated, mostly courteous (“I'll let you go,” he said after gently pestering one lawyer), keenly interested and – most conspicuously – not at all baffled by the complexity.

By news reporters’ counts, he leaned forward with a series of questions eight times during the day. And for all that the yawning and (when it was paying attention) befuddled press corps could discern, he sounded wholly prepared. (He had actually skipped the court’s private conference last Thursday for a discussion of new cases – it would have been his first to help select new cases for review — and the court said he missed it to use the time to prepare for the hearings this week and next.)

He is the replacement on the court for the late Justice Antonin Scalia, and he seemed to channel his predecessor in one potentially significant way: he appeared to be most focused on the specific texts of the laws being reviewed — an early sign that he may be a “textualist” (that is, one who thinks that those who write the laws actually mean literally only what they write and so judges should not add to that).

He avoided any hint of what his judicial philosophy otherwise might be, but, given what was under review Monday, there might be no philosophical way to sort through that.

There was no indication that he would actually rough-up arguing lawyers the way Scalia took delight in doing. And he made no effort to say things that he knew (or hoped) would get a laugh – as his predecessor so often did.

And he was not pushy on the bench, as Scalia could be. At one point, he started to ask a question, and then noticed that Justice Sotomayor, sitting next to him, had started one, so he offered to defer to her. She let him go ahead.

Whatever impression he made on the audience, he appeared to have impressed the eight people sitting closest to him., who know how the place is supposed to work.

Legendary journalist Lyle Denniston is Constitution Daily’s Supreme Court correspondent. Denniston has written for us as a contributor since June 2011 and has covered the Supreme Court since 1958. His work also appears on lyldenlawnews.com, where this post first appeared.

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