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Gorsuch Jumps Right in During Supreme Court Debut

Gorsuch Jumps Right in During Supreme Court Debut

So far, so good

New Supreme Court Justice Neil Gorsuch took his chair on the high court for the first time Monday and wasted no time making his voice heard.

During his long confirmation process, Gorsuch told the Senate that he would not allow his personal beliefs to persuade his judicial interpretation.

The court first heard a case that presented “a technical but important question about appeals from decisions by the Merit Systems Protection Board (MSPB), which reviews federal employees’ claims that they were wrongly fired, suspended or demoted.” SCOTUS Blog explained that the MSPB has claimed that it does not have “the authority to rule on an employee’s claim because the employer cannot appeal the allegedly wrongful action, but the employee also alleges that she has been the victim of discrimination – a so-called ‘mixed case.'”

The court must decide if a case over discrimination heads to the U.S. Court of Appeals for the Federal Circuit or the federal district court.

Chris Landau tried to convince the court that his client’s case should go to the district court. Gorsuch has his turn after the justices questioned Landau:

Exactly what part, Gorsuch wanted to know, of the federal statute at issue provided for the path that Landau was advocating? Landau started to respond by pointing to a Supreme Court case, but he didn’t get far before Gorsuch interrupted him to focus again on what he described as “the plain language” of the statute.

A few minutes later, Landau sought to reassure the justices that his client was not asking the Supreme Court to “break new ground” with its ruling. But Gorsuch again seemed skeptical, suggesting that what Landau was in fact asking the justices to do was to “just continue to make it up.” Gorsuch seemed to agree with Landau that the result his client is seeking should be in the text of the governing statute – but, Gorsuch cautioned, it isn’t.

Gorsuch also concentrated on the text when he questioned Brian Fletcher, the assistant to the U.S. solicitor general:

But here too he focused on the text, asking Fletcher (somewhat rhetorically) whether it wouldn’t “be a lot easier” if we just followed the plain language of the statute. And when Fletcher started to outline the reasons underlying the government’s position, Gorsuch pressed Fletcher to explain “where” in the statute the government’s proposed rule found support.

Over the weekend, some wondered if Gorsuch would recuse himself from the case of Town of Chester, New York v. Laroe Estates, but not because of the case itself. It’s because of Neal Katyal, former solicitor general under former President Barack Obama, who argued for Chester.

Katyal wrote a New York Times op-ed to explain why the left should support Gorsuch. He also introduced Gorsuch to the Senate Judiciary Committee.

The court does not have any “rules on when or if a justice must recuse himself.” Usually, the justice will stand up and leave.

Not Gorsuch. He remained on the bench, but he did not ask Katyal any questions. From The Washington Examiner:

Gorsuch’s silence during Katyal’s arguments is noteworthy, as the newest justice played the role of a happy antagonist throughout the rest of the day’s hearings. Unlike during the Senate hearings on his nomination, Gorsuch was not shy about injecting himself into the various cases and controversies before him.

Katyal, who was arguing at the Supreme Court in Town of Chester v. Laroe Estates involving a zoning dispute, introduced Gorsuch at Senate Judiciary Committee hearings on his high court nomination. Katyal effusively praised Gorsuch last month as a judge who “displayed a resolute commitment to the rule of law and the judiciary’s independence.” On Monday, Gorsuch did not say a word when Katyal came before the Supreme Court.


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Great start.

So Gorsuch has decided on his own to reject the “feelings” doctrine? I thought that doctrine was “settled law”?

How nice. A justice who is interested in what the law is written to say, not what a judge says the law says in the margins and penumbras.

Isn’t interpreting what the legislature intended—when something it may not have considered crops up—part of the court’s job? Consider the question of invalidation of absentee ballots which are not postmarked by a particular date. Some perfectly legitimate mail lacks postmarks, dated or not; particularly mail from some military bases. The law in question made no explicit mention of absentee ballots made from military bases, but a court could reasonably conclude that it would be inconceivable for any American legislature to intentionally disqualify servicemen’s votes for such a trivial reason; therefore the omission must have been inadvertent.

    In the case of postmarks, wouldn’t a logical next step would be to propose a law to correct that language?

    Of course, the best proposed law would have the applicable section disclosed in total with a strikeout of the offending words and another paragraph of what the new section should say.

    There may be a few cases that are lost because of Gorsuch’s attention to the text, but if results in laws which are clearer, then it will be a good thing.

      Another Voice in reply to Liz. | April 17, 2017 at 4:24 pm

      “would be to propose a law to correct that language?”

      That action would need to originate in the House. The courts do not write law, they administrate compliance of the judicial system to apply the laws. The fine line is how the legislative and lower courts interpret and apply the laws. The Supreme Court is the last checks and balance of the Constitutional legality and original intent of laws enacted and applied. Obamacare is a testimony to liberal interpretation when intent is given 2nd billing as was the so much of the Obama administration enacted rulings and mandates with having had more reversals by the Supreme Court than previous administrations since FDR.

        Ragspierre in reply to Another Voice. | April 17, 2017 at 4:41 pm

        What you say is quite true. But the courts can…and DO…hint broadly and in perfect rectitude at WHY a law is badly crafted and HOW it can be tightened up.

        It happens a lot, and it should be heeded more often than it is.

        We often blame judges for how they deal with the stinking crap that law-makers send them. (Finkelstein will just have to twist his doilies over the “crap” reference).

        Another Voice – you are correct that Congress would have to write the law – I had a brief power outage between brain and fingers.

      tom swift in reply to Liz. | April 17, 2017 at 4:41 pm

      wouldn’t a logical next step would be to propose a law to correct that language?

      The logical step would be to do it right the first time.

      However, since one needs few real qualifications to be elected to a legislature, and since a legislature’s product is always the work of a committee, with all a committee’s well-known faults, hoping that they’ll get it right the first time is just childish. So is hoping they’ll get it right the second time. Or the third, or the nth.

      Of course, the best proposed law …

      Correcting the law is great … and until that gets done, what happens to the votes? Are servicemen systematically denied their franchise, or not? They don’t get to vote twice in the next election to make up for being denied their legitimate votes the first time.

      but if results in laws which are clearer

      You can’t be serious.

        Yes, it would be better to get the law done correctly the first time, but if it is not correct, then it is important that I and many others call our reps to tell them to correct it. Then, vote in better reps.

        I can go to my state’s board of elections and track my absentee ballot. If it was rejected, I can find out the reason. If it was rejected for a postmark, then I would work to improve the process for the next election. Perhaps military mail does not need postmarks, but why don’t they make an exception for election ballots? Seems logical to me…

        And yes, I am serious that we need clearer and fewer laws and regs. I know it won’t be in my lifetime.

        artichoke in reply to tom swift. | April 18, 2017 at 2:35 pm

        So recognizing that the legislators don’t know the law very well, these expert judges and justices take the trouble to advise them of the problems they face in interpreting the law.

        Seems like a pretty natural feedback loop to me. And then the legislators should pay attention and work on such issues. But there’s probably not time on the calendar and it wouldn’t wow the constituents back home.

SCOTUS Blog explained that the MSPB has claimed that it does not have “the authority to rule on an employee’s claim because the employer cannot appeal the allegedly wrongful action, but the employee also alleges that she has been the victim of discrimination – a so-called ‘mixed case.’”

This doesn’t make sense, so I went back to the SCOTUS blog and there is a different word in the sentence, but no notice about a correction. The word “employer” is now “employee”. But, it still doesn’t make much sense.

This was the best line in the article…”… but Alito stole the show with his complaints to Fletcher about how “unbelievably complicated” the governing statute is. Lamenting that no one who isn’t a lawyer could possibly understand it, Alito asked Fletcher whether he knew “who wrote this statute? Someone who takes pleasure in taking the wings off flies?””

Wow, perhaps we’ll get better written laws & regulations.

    Arminius in reply to Liz. | April 18, 2017 at 2:08 am

    Thanks for clearing that up, Liz. I read that head scratcher and the first thought that popped into my head was, “She works for the federal government. That makes me the employer.”

It’s kind of funny how at the end of the story, they rather suspiciously cast doubt on why Justice Gorsuch didn’t ask Kaytal any questions, completely ignoring the fact that there are 8 more senior justices there with the capability to ask any questions that needed asking.

    Ragspierre in reply to Tom Servo. | April 17, 2017 at 4:44 pm

    Thomas is renowned for not asking ANY questions during oral arguments.

    Mostly because, by that stage, he knows the case and the law better than the lawyers, AND because he respects them enough to figure they are presenting their good stuff without prodding.

      Gremlin1974 in reply to Ragspierre. | April 17, 2017 at 8:06 pm

      Yea, remember the Media Buzz after Scalia died and in the next case Thomas asked a question and it was a question that most believed Scalia would have asked if he were there?

    Gremlin1974 in reply to Tom Servo. | April 18, 2017 at 2:21 am

    Well it’s probably a safe bet that RBG slept through the whole thing as usual.

      artichoke in reply to Gremlin1974. | April 18, 2017 at 2:40 pm

      Does she sleep thru the arguments? Maybe she’ll miss her alarm someday and not attend the voting session. We can only hope …

I’ve listened to 2 or 3 oral arguments in the past few years, and in each one at some time Justice Sotomayor admits she’s not up to all these technicalities as much as her colleagues. She has a big picture understanding that’s about as perceptive as mine, better than most amateurs but still …