Judge Gorsuch appears to be making the media rounds ahead of the publication of his book. I wrote about his interview with The Wall Street Journal yesterday. Today, The New York Times They published the transcripts of the Supreme Court interviews. Going back to one of my hobbies, when a publisher signs a book deal with a Supreme Court justice for a big advance, the publisher knows that the media will be happy to give an interview in front of the Supreme Court. This is the kind of free press money can’t buy. Well, it can be bought for a big advance. Put on the cap Regarding the judge’s copyright royalties. I digress.
French and Gorsuch debated at length about what we learned from the COVID-19 cases. The truth is, we need to look back on that period now more than ever. Many of us (including those in this room) made terrible decisions. Our faith in the power of government and self-proclaimed “experts” was wildly misplaced. And nothing that’s happened since the pandemic has restored my faith. Chief Justice Roberts’ “super precedents” have been South Bay Even though it is old, it is still going strong. I can’t help but imagine that there must have been some distrust lurking in the background. Loper Bright.
I found the exchange about collegiality the most enlightening. I think collegiality is a word that many people use in different ways. It is well known that Justices Scalia and Ginsburg were good friends and often socialized together. They were colleagues. But did RBG ever convince Justice Scalia to change his mind, at least on major cases? Probably not. Does that mean they weren’t colleagues?
Lately, Justice Kagan has been pushing this latter notion of community-mindedness, the idea that it is essential to be open-minded and willing to be persuaded. I can’t help but imagine that this is part of her efforts to corral Justice Barrett’s vote at every opportunity. If there is a common thread with Joan Biskupic’s reporting, it is that Justice Kagan has overruled Justice Barrett in multiple cases. I have yet to see any indication that a conservative justice has overruled a liberal justice to reach a conservative conclusion. Overriding only works for the left, not for ambidextrous people.
I myself reject the idea that collegiality entails a willingness to reconsider one’s opinion. It is always the role of the judge to find the truth and decide in his or her own mind what the best answer is to a particular legal dispute. And that process mainly involves considering the arguments presented by the lawyers and deciding which side should win. To be sure, judges on a multi-judge court lobby each other for this position or that position. And to maintain the relationship, it is important to be willing to listen. But I don’t think collegiality requires more than listening. To be sure, this kind of ex post lobbying, which takes place after the briefs have been presented and the arguments have concluded, is problematic. Perhaps the parties have explicit counterarguments to some ex post position that was put forward, but they have no opportunity to debate it. The conference vote reflects an evaluation of the actual case as it was presented. But if the vote changes after the conference, it is necessarily because new aspects of the case that the parties did not have a chance to address have been decided. The Supreme Court can always order a restatement and reargument, but unfortunately, the pattern so far has been that it simply adjudicates cases on grounds that are completely irrelevant to the lower courts. Net Choice and Moyle It comes to mind.
David French posed this question to Justice Gorsuch, who indirectly answered it.
FrenchJustice Kagan has recently spoken out on the Ninth Circuit about peer relations within the courts, most notably the friendship between Justices Ruth Bader Ginsburg and Antonin Scalia, and more recently, Justice Sonia Sotomayor. He gave a speech. In it, she had some really kind things to say about Justice Clarence Thomas and the way he interacted with court staff.
But Justice Elena Kagan said something interesting. She said the collegiality America should seek is not, as I would put it, “Do we go to the opera together?” but “Do we open up to each other?” Are we collegial enough to be open up to each other? What are your thoughts on judicial collegiality?
Gorsuch: Well, David, you’re not going to take me to the opera.
French: I didn’t expect that to happen.
Gorsuch: There’s a lot that goes into that question.
French: Yeah.
Gorsuch: I don’t know if I need to talk about the courts first.
FrenchLet’s start with the courts and then with the culture.
Gorsuch: Well, I think it’s important in the courts to be friends and to enjoy each other’s company. We have a nice dining room upstairs. It’s a nice dining room, but it’s government, so we bring our own lunch. And often times, you’ll see Supreme Court justices bring in brown bags and peanut butter and jelly sandwiches. I get it. Those moments are important. It’s human. But I also understand that collegiality in a work environment is about working well together. Can you give us some numbers that you think speak to that?
Justice Gorsuch explained that the Supreme Court decides many cases unanimously and that he often votes with the “liberal” side, saying such unexpected alliances are evidence of “collaboration.”
Gorsuch: We decide 60 to 70 of the most difficult cases in the country every year where the lower courts have disagreed. That’s our only purpose in taking cases to the Supreme Court. We’re just asking for federal law. Our job is primarily to make sure that it’s uniform across the country. If the circuit courts agree, there’s little reason for us to take the case unless it’s a very important case.
So most of the work that we do is when lower court judges disagree on the law. The strange thing is, I think there are only about 60 or 70 cases in this country. You could argue it’s more or less, but it’s not thousands. It’s a very small number.
We have nine justices appointed by five presidents over 30 years. We have very different views on how to approach issues of statutory interpretation, constitutional interpretation, political differences, differences in how to interpret. But we are able to reach unanimous decisions on the cases that come to us about 40 percent of the time. In previous terms, I think the percentage was even higher. I don’t think that happens automatically.
I think that’s the result of a lot of hard work. That is evidence of a collegial relationship.. Got it? That’s what we do, and we do it well. Now, people often say, “Well, what about the 6-3s?” Yes, that’s true. Yes, it is. But that’s about a third of our caseload. And it turns out they’re not necessarily what you think they are. About half of the 6-3s this last semester are not what you think they are.
Okay, Gorsuch doesn’t actually answer the second half of Kagan’s question. The fact that justices vote in unconventional ways reflects the fact that they are all unorthodox to various degrees. The justices are not ideologues, contrary to what you might read. Believe me, things would be very different if there really was a MAGA court. But Gorsuch doesn’t imply that collegiality requires a willingness to be persuaded. It’s the facts of the case and the arguments the lawyers develop that determine the unconventional composition.
I would pose the same question to Judge Barrett, because I think she might see things differently.
French also questioned Justice Kagan’s ethics proposal, to which Gorsuch explained that facts had changed since Kagan’s speech: President Biden wrote a nonsensical op-ed and Senator Schumer introduced a nuclear bill.
French: We’re running out of time, so I want to ask a couple of other questions. First, Justice Kagan also brought up an interesting idea about ethics. She said that the Supreme Court has an ethical code, and she spoke about how much she appreciates it, but she also talked about the possibility of enforcement. I’ll read the quote here: “If the Chief Justice were to appoint a panel of highly respected judges who are experienced and have a reputation for fairness, that seems to me like a good solution.”
And the reasoning behind this is to provide a kind of outside judicial panel to protect the court and provide an outside voice that can not only adjudicate potentially valid claims but also expose invalid accusations. And she has made it clear that she is speaking only for herself. What is your reaction to this idea?
Gorsuch: Well, David, since that speech there have been some developments in the world and this is a topic that is currently being hotly debated on all sides of politics, and I don’t think it would be very useful for me to comment on it at this point.
In hindsight, if Mr. Kagan had known what was going to happen the following week, would he have still spoken out? Or did Mr. Kagan know what was going to happen and speak out to shift the Overton Window? We’re dealing with a crafty and competent operator here, so let’s be skeptical. How does that help collegial relationships?
