Justice Gorsuch appears to be on a media tour ahead of a book launch. Yesterday I wrote about the Wall Street Journal interview. Today, The New York Times’ David French publishes the transcript of his NMG sit-down. Going back to one of my hobbies, when a publisher offers a judge a book deal and a large advance, the publisher knows the media will be happy to sit down for an interview with the Supreme Court. This is free journalism that can’t be purchased – but can be purchased with a substantial advance payment. All the more reason to cap judges’ royalties. I digress.
French and Gorsuch had an in-depth discussion about what they have learned from COVID-19 cases. In fact, we need to reflect more on that period. Many of us (including current companies) have made some poor decisions. Our faith in the power of government and self-proclaimed “experts” is largely misplaced. Nothing that has happened since the pandemic has restored my confidence. Chief Justice Roberts’ “super precedent” South Bay Not old yet. I can only imagine that distrust lurks Loper Bright.
I have found the most enlightening exchanges that unlock the spirit of collaboration. I think many people use this term to mean different things. Justices Scalia and Ginsburg are known to be close friends and often socialize together. They are colleagues. But did RBG ever convince Scalia to change his mind, at least on the big cases? Probably not. Does this mean they are not colleagues?
More recently, Justice Kagan has been promoting the latter concept of collegiality—one that requires an open mind and a willingness to be persuaded. I have to imagine that this push is part of her effort to secure Judge Barrett’s votes at every opportunity. If there’s one thing that Joan Biskupic’s reporting has in common, it’s that Judge Kagan overturned Judge Barrett in several cases. I haven’t seen any indication that conservative justices are overruling liberal justices to achieve a conservative outcome. The flip is not neat and it only works on the left side.
Personally, I reject the notion that collaboration means being willing to reconsider your views. A judge’s job is always to seek the truth and determine the best answer to a particular legal dispute based on his or her best opinion. The process essentially involves weighing the arguments presented by the attorneys and deciding which side should prevail. To be sure, judges on multi-member courts will lobby each other for this or that position. To maintain a relationship, it’s important to be willing to listen. But I don’t think a partnership requires anything other than listening. In fact, there is a problem with this kind of ex post facto lobbying, which occurs after the brief has been filed and the argument concluded. Perhaps the parties had obvious counterarguments to some of the positions raised after the fact, but were not given the opportunity to discuss them. The votes cast at the meeting reflect an assessment of actual cases. However, when votes change after a conference, it is always because of some newly identified aspect of the case that the parties did not have a chance to resolve. The court can always order a restatement of the case and re-argument, but unfortunately this model simply decides the case on grounds that are completely alien to the lower court. Network selection and moyle I thought about it.
David French asked the question to Justice Gorsuch, who answered it indirectly.
French: Judge Kagan recently gave some remarks to the Ninth Circuit about collegiality within the court. For example, the most famous was the friendship between Justices Ruth Bader Ginsburg and Antonin Scalia. Also recently, Justice Sonia Sotomayor gave a speech in which she had some very kind things to say about Judge Clarence Thomas and the way he interacts with court staff.
But Judge Elena Kagan said something interesting. She said the spirit of cooperation that America should be looking for – and this is how I paraphrase it – is not, “Are we going to the opera together?” but “Are we open to each other?” Are we harmonious and open to each other? What is your temperature measurement for a collegial court system?
Gorsuch: Well, you’re not going to drag me to the opera, David.
French: I didn’t expect this.
Gorsuch: There are many questions about this.
French: Yes.
Gorsuch: I don’t know if you want me to talk about the situation in the court first.
French: Let’s discuss the court first and then the culture.
Gorsuch: certainly. So, in court, I think it’s important that we become friends and enjoy each other’s company. We have a beautiful dining room upstairs. Lovely restaurant but it’s government owned so we brought our own lunch. Usually you’ll see the chief judge holding a brown bag and a peanut butter and jelly sandwich. OK These moments matter. They are people. But I also think collaboration in a work environment means being able to work well together. Can I share with you some numbers that I think illustrate this?
Gorsuch went on to explain that the court has ruled unanimously in many cases and that he often votes for the “liberal” side of the case. He said these unexpected alliances were evidence of a “spirit of cooperation”.
Gorsuch: We decide 60, 70 of the hardest cases every year in which lower courts across the country disagree. This is the only point in filing a case before the Supreme Court. We just want federal law – our job is primarily to make sure it’s uniform across the country, and if the circuit courts are unanimous, we have no reason to take cases unless they are extremely important.
So much of the work we do is done when lower court judges disagree about the law. Miraculously, I think there are only about 60 or 70 cases in this country. You can argue more or less, but there won’t be thousands of such arguments. Their numbers are very small.
Nine of us have been appointed by five different presidents over 30 years. We have very different views on how to deal with statutory interpretation, issues of constitutional interpretation with respect to political disagreements, or differences in interpretive methodologies. However, the chance that we will be able to reach a unanimous verdict on the cases before us is about 40%, and I think the chance was probably higher last semester. I don’t think this happens automatically.
I think it’s the result of a lot of hard work. I think This is proof of collegiality. OK? That’s what we do, and we do it well. Now people often say, “Well, what about 6-3?” Fair enough. fair enough. But that’s about a third of our to-do list. It turns out they’re not always what you think. About half of the 6-3s last semester were not the 6-3s you imagined.
Well, Gorsuch didn’t actually answer the second part of Kagan’s question. The fact that the justices voted in unusual ways reflects the fact that all justices are unorthodox to varying degrees. Contrary to what you may have read, they were not ideologues. Trust me, if we had a real MAGA Court, things would look very different. But Gorsuch stopped short of even suggesting that cooperation requires a willingness to be persuaded. The facts of the case and the arguments made by attorneys dictated the unusual lineup.
I would like to ask the same question to Judge Barrett. I thought she might see it differently.
French also asked about Justice Kagan’s ethics proposal. Gorsuch explained that facts have changed since Kagan’s speech. Namely, President Biden writes a meaningless op-ed and Senator Schumer introduces a nuclear bill.
French: We’re running out of time, so I’d like to answer a few additional questions. First, Justice Kagan also raised this interesting idea about morality. She talked about the Supreme Court having a code of ethics that she appreciated, but she also talked about the possibility of enforcing it “if the chief justice appointed some kind of committee” — and I’ll read that here — by the much-publicized Composed of distinguished judges who have extensive experience and a reputation for fairness, you know, this seems like a good solution to me.
One reason is to create some kind of outside judicial panel, in part to protect the court and provide an outside voice that can not only adjudicate potentially valid claims but also debunk invalid ones. She made it clear that she was speaking only for herself. What was your reaction to this concept?
Gorsuch: Well, David, there have been some developments in the world since that speech, and now it’s a topic that’s being hotly debated across the political spectrum, and I just don’t think it would be of much use to me to comment on it at the moment.
In hindsight, would Kagan still have made such a statement if he had known what would happen next week? Or maybe Kagan knew what was coming and made her remarks to move the Overton Window? We’re working with a dodgy plug-in operator, so be skeptical. What effect does this have on collegial relationships?
