Neil Gorsuch is already alienating his colleagues in the Supreme Court left and right
Long after his presidency is over and Trump has finally shuffled off this mortal coil, Neil Gorsuch will likely still be sitting on the Supreme Court, much to the delight of American conservatives. Gorsuch’s fellow Supreme Court justices do not appear to share their glee. Multiple reports indicate that almost from the moment he was confirmed, the dyed-in-the-wool constructionist has rubbed members of the court the wrong way—and not just the liberals on the bench.
Last month, Jeffrey Toobin of the New Yorker cataloged all of the judicial norms and practices the Trump appointee has violated during his brief tenure. He has dominated oral arguments where new associates are expected to defer to their seniors, penned condescending dissents challenging the wisdom of a court whose justices claim more than 140 years of experience between them, and barely concealed his contempt for Anthony Kennedy’s majority opinion in Obergefell v. Hodges, a landmark decision legalizing same-sex marriage.
Gorsuch has also broken SCOTUS’ unwritten rule that no justice embarrass the high court with any kind of overt political advocacy. In less than a year of service, he has delivered speeches at the conservative Fund for American Studies (at the Trump International Hotel in Washington, no less), as well as at the University of Louisville, where he was introduced by Senate Majority Leader Mitch McConnell. (McConnell was instrumental in blocking the appointment of Merrick Garland, whom Gorsuch ultimately supplanted.)
“There is nothing unlawful about Gorsuch’s speeches, though it’s hard to say just what the ethical rules are for Supreme Court Justices,” Toobin writes. “They are exempt from the code that governs the conduct of other federal judges, so the Court has traditionally relied on informal self-policing.”
John Roberts, who was appointed by George W. Bush in 2005, has reportedly taken exception with Antonin Scalia’s successor. According to CNN, a “rivalry” has emerged between the two conservatives, with the chief justice refusing to join Gorsuch’s dissent in a case overturning an Arkansas law that prohibited same-sex partners from being listed on a child’s birth certificate. (Roberts previously dissented in Obergefell.) And while he’s been fairly consistent throughout his judicial career, the piece notes, “Roberts may be more open to negotiating with liberals if Gorsuch continues to bolster the hard right.”
Gorsuch’s relationships with Ruth Bader Ginsburg and Elena Kagan appear markedly more contentious. During oral arguments in Gill v. Whitford, a case that could determine the future of partisan gerrymandering in U.S. congressional districts, Ginsburg appeared to bristle at the associate justice’s originalist line of questioning, asking him curtly, “Where did one person/one vote come from?”—a reference to Chief Justice Earl Warren’s ruling in 1964’s Reynolds v. Sims.
Earlier this week, NPR’s Nina Totenberg, who has covered the court for decades, told the Supreme Court podcast First Mondays that Kagan has “really taken him on” in conference. “It’s [been] a pretty tough battle,” she said, “and it’s going to get tougher.”
“Why is Totenberg’s reporting here so extraordinary?” asks Mark Joseph Stern of Slate. “Because it’s astonishing that any reporter would hear details from conference, let alone score some genuinely juicy scuttlebutt…If rumors leak about a justice’s behavior in conference—and they basically never do—it is almost certainly a justice who leaked them. And when justices leak—which again, happens very rarely—they do so on purpose.”
Gorsuch is an illegitimate justice occupying a stolen Supreme Court seat. If he leaves behind a legacy of corporate plunder and institutional rot, he will have honored the man who nominated him.