Apart from expressing their ire over a “stolen seat” on the Court, Democrats had to make a tactical call when Gorsuch was nominated. With only 48 of 100 votes in the Senate—and no realistic way to prevent his confirmation in an ordinary vote—should they pursue a filibuster or save their powder for a subsequent Trump nominee? Whatever Gorsuch’s views on the bench turned out to be, and regardless of how it came to pass that Trump got to nominate him, in most cases Gorsuch wouldn’t alter the basic ideological equilibrium of the Court: four liberals, four conservatives, and Kennedy in the middle. But the retirement of Kennedy or Ginsburg or Breyer—the three eldest justices—would allow Trump to nominate a justice who could transform the Court.
Deriving from a Dutch word for “pirate,” the filibuster is a venerable parliamentary device in the Senate that distinguishes the Senate from the House of Representatives. Designed to forge consensus—to curb an untrammeled majority—the American filibuster dates to the early 19th century. Whereas in the House a simple majority has full control, in the Senate, since 1975, it took a three-fifths majority—60 votes—to bring a bill or nomination to the floor. That means an aggrieved, motivated minority of senators could block a president’s pick for the Court. In the old days, that entailed speaking on the Senate floor interminably to stall or prevent a vote from being taken—like when Jimmy Stewart, playing an idealistic freshman senator, talked nonstop for 23 hours and 16 minutes in the 1939 classic “Mr. Smith Goes to Washington.” In recent administrations, the party out of power has threatened to use the filibuster for nominees both to the lower federal courts and to the Supreme Court. The party in power predictably railed about abusing Senate rules and failing to respect majority rule.
In 2005, with the GOP in control of both the White House and the Senate, Democrats had prevented votes on three of George W. Bush’s lower-court nominations. The Democrats had done similarly a few years earlier in Bush’s presidency—most notoriously, according to Republicans, in the case of Miguel Estrada, a 39-year-old Honduran immigrant who moved to the United States as a teenager and became a gifted litigator. In each instance, Democrats said Bush’s choice was a conservative zealot.
Fed up, Republican leaders warned they might try to get rid of the filibuster for Court nominations. The president lent his support. “Every judicial nominee deserves a prompt hearing and an up-or-down vote,” Bush declared in a speech. Paradoxically, it took only a simple Senate majority—51 votes—to dispose of the requirement for a supermajority of 60 votes to break a filibuster. The GOP’s ultimatum came to be called “the nuclear option,” a metaphor that reflected how much internecine Senate warfare had mushroomed. Barack Obama, then a senator, said as much in The Audacity of Hope. “I remember muffling a laugh the first time I heard the term ‘nuclear option,’ ” he wrote. “It seemed to perfectly capture the loss of perspective that had come to characterize judicial confirmations.” He came to learn, though, that Republicans were not to be underestimated.
After months of posturing, a handful of moderate Democrats, together with their Republican counterparts, reached a compromise in 2005 that averted a showdown over the filibuster. The deal was that it would be deployed only “under extraordinary circumstances.” What did that mean? One senator helpfully explained, “We’ll define it when we see it.” But the nuclear option was now part of the political arsenal on Capitol Hill.
Skirmishes over judicial nominations continued for the rest of the Bush presidency and escalated when Obama took office. And it was the Democrats who first deployed the weapon. In late 2013, facing Republican intransigence on lower-court nominations, Democratic senators—now in the majority—finally pulled the trigger. Nominees for lower federal courts would need only 51 votes for confirmation. But the Democrats had ceded the principle, and their exception for the Supreme Court wouldn’t last. There was a far better argument to preserve the filibuster for all judicial appointments than, say, for mere legislation. Whereas the latter could be repealed, the former were irreversible (short of impeachment). In relinquishing any high ground over the tempering value of filibusters, Democrats had breached a line that the Republicans eight years earlier had only threatened to. The genie was out of the bottle. The only real imperative now seemed to be which party was in power.
With Republicans in control of the Senate come 2017, the Democrats were in no position to condemn them for fully weaponizing the nuclear option for Gorsuch. What was sauce for the goose was sauce for the gander. The Senate had become a schoolyard—they started it! With Trump egging him on, Mitch McConnell, the Senate majority leader, said Republicans were willing to do whatever was necessary to get Gorsuch confirmed, including doing away with the filibuster for all judicial nominations.
Democrats had a predicament. And especially when it came to judicial nominations, they weren’t very good at resolving them. “Republicans have subscribed to the Capone school of politics,” wrote a columnist for the New York Times. When Democrats “pull a knife,” Republicans “pull a gun.” After Republicans did so, Democrats still shilly-shallied about which knife to go with. “I was taught that two wrongs don’t make a right,” explained Heidi Heitkamp, a Democratic senator facing reelection in 2018 in North Dakota, which went for Trump overwhelmingly in the presidential race.
The parties’ political tactics were asymmetric. Democrats had long shown they didn’t know what to do about it. In power in Congress for much of the prior 50 years, and philosophically committed to the idea that government can function effectively, they were inept at being an opposition party. In the arena of judicial nominations, they had demonstrated that by failing to muster significant resistance to John Roberts and Sam Alito in 2005; 40 of 44 Democrats (along with one Republican and one Independent) voted against Alito, but they were unable to sustain a filibuster. (In 1991, Thomas, too, faced a Democratic bloc, but 11 of 57 Democrats voted for him, and there wasn’t even the threat of a filibuster.)
In sharp contrast, when Obama nominated Garland in 2016, Republicans hung together in denying him even a hearing. It’s possible that if the roles were reversed Democrats might have behaved identically. Maybe they would have ruthlessly obstructed any Court nomination by a Republican president in his last year in office. But there’s little evidence they had the same stomach for death matches, and plenty of evidence they did not. Polling in the 2016 presidential race didn’t help to motivate the Democrats either. Conservative voters cared a lot more than liberals about the Court. If somebody voted for a candidate primarily because of the Court, it was more often than not a Trump supporter. Those who voted for Trump said his predigested list of 21 Court contenders made a big difference; for those voters, the excesses of rulings on abortion and gay marriage were sufficient cause to turn to Trump.
On Gorsuch, Democrats faced several questions. Were they better off concentrating on other legislative battles—saving Obamacare, funding infrastructure, mitigating Trump’s immigration orders? If they wanted to go after Gorsuch, should they do so based on the individual merits of his rulings or on his supposed illegitimacy? The former might be difficult, given his intellectual command. The latter allowed for easy, principled consistency. Because it was Garland’s rightful seat, the Democrats could say they’d oppose any nominee not named Merrick Garland—even the second coming of Oliver Wendell Holmes Jr. (though he would’ve had age issues). And if the Democrats were going to engage fully, would they opt for a filibuster and dare the GOP to dispense with it altogether? Republicans could cite what the Democrats had done in 2013 as justification, but Republicans would have to realize that someday they no longer would hold the gavel and would then be on its receiving end. As you sow, so shall you reap.
Each side seemed to be locked in an inescapable logic. Republicans, in addition to wanting Gorsuch safely ensconced in Scalia’s seat, felt they were free to punish Democrats for partially eliminating the filibuster a few years earlier, even though Republicans likely would have done the same thing under the circumstances. Most Democrats, even though they assumed Gorsuch would be confirmed, believed they had to make Republicans pay a price for it. Voting to end the filibuster was that price. It wasn’t that such an outcome was perfect—only that the alternative was worse. It was just another chapter in the sorry Bork-to-Garland saga. If you don’t inflict a penalty on the other side, they’ll just walk all over you again. In time, the theory goes, both sides might come to see how bad behavior—in this instance, ignoring time-honored Senate norms—was suboptimal and how in the long run the costs were too high on both sides. That’s the theory. In the meantime, at the very least, you threaten the threatener, fight fire with fire.
True to form, when the four days of Gorsuch hearings began in March 2017, the Democrats were befuddled. They just weren’t as talented at confirmation politics as the Republicans. Perhaps it was of a piece with how presidents of the respective parties looked at the process. The last two Democratic presidents, Obama and Clinton, were Ivy-trained lawyers and former professors of constitutional law. For them, the selection of judges was supposed to be somewhat nuanced, like the doctrine the judges would be applying. It didn’t totally work out that way, but those presidents understood what the ideal was, even if they succumbed to politics in the end. By contrast, every Republican president since 1980 has had a background in something other than law. For them, courts have been just another way to implement partisan policies.
Much as Democratic senators wanted to retaliate against Republicans for obstructing Garland, they couldn’t execute the game plan. At the hearings, they would mention the ghost of Garland, ask an actual question about it, and after getting a nonresponse, move on to something utterly different. Despite 20 hours in the dock, Gorsuch barely had to break a sweat, perhaps devoting more deliberation to when again to pay adoring tribute to his wife. (He wasn’t two minutes into his opening statement before turning around, smiling at her, referring to her “giving heart,” telling her he loved her “so much,” and then offering her a hearty handshake that became a big hug.) Consider this early exchange between the nominee and Patrick Leahy, the senior Democratic member of the Judiciary Committee:
“Do you think [Garland] was treated fairly by this committee—yes or no?” Leahy asked, under the bright TV lights of Room 216 of the Hart Office Building.
“Senator,” replied Gorsuch, “I can’t get involved in politics. There are judicial canons that prevent me from doing that, and I think it would be very imprudent of judges to start commenting on political disputes.”
And that was it. Leahy was off to another question on his list, apparently not paying much attention to Gorsuch’s palpably laughable answer. The Q-and-A was not so much a probing exploration of the witness’s ideas as a performance for the cameras: talking points from the senators, met with pablum posing as humility from the nominee. It wasn’t exactly Otto Preminger’s “Advise & Consent.”
Gorsuch’s canned responses were the product of punishing mock hearings, where Don McGahn, Leonard Leo and others pelted him with possible questions and allowed him to test answers. The nominee duly regurgitated every banality prescribed by his handlers: He would always “do all in my power to be a faithful servant of the Constitution and laws of this great nation”; he would dispense justice to “poor and rich” alike; even presidents were not “above the law”; and precedent deserves respect. In the chronicles of American law, few would-be judges have ever indicated otherwise. When Leahy inquired about Garland, Gorsuch essentially went on autopilot, the chief challenge being not to appear overly rehearsed.
But couldn’t Leahy have pressed Gorsuch on just which “judicial canons” supposedly proscribed him from talking about what happened to Garland—all the more since Gorsuch in a 2002 op-ed wrote how “grossly mistreated” Garland had been when nominated to the D.C. Circuit in 1995? (Garland had waited 18 months before being confirmed for that lower court.) Or perhaps Leahy might have pointed out how Gorsuch’s refusal to discuss Garland was particularly disingenuous because Gorsuch, on the very night Trump nominated him, had called Garland “out of respect.” The call was private, yet somehow it was leaked—and was repeatedly mentioned at the hearings. Garland wasn’t the source, which doesn’t leave a lot of other possibilities.
Other Democratic senators, after putting in a few words of their own about Garland, tried to pick apart some of Gorsuch’s rulings that seemed more doctrinaire than contemplative. He had displayed admirable care in cases dealing with privacy rights and criminal defendants, but these were exceptions. One case stood out, and collectively, more than an hour was spent on it—his lone dissent in 2016 in what became known as “the case of the frozen trucker.” The facts were straightforward and cruel: Late one winter night, with the temperature below zero, a trucker was stranded on the side of Interstate 88 in Illinois. The brakes on the trailer he was pulling had stopped working. He called his company for assistance. The dispatcher told him he had two options: wait for help, or continue to his destination even with defective brakes. The heater was broken in the cab of the truck. After three hours, with his feet numb and his breath short, the trucker opted for a third choice that preserved his own life and kept the roads safe. He unhitched his cab from the trailer and drove to a gas station for help. Less than a week later, the trucker was fired for disobeying orders and abandoning his rig.
A federal statute dating to the Reagan administration barred companies from firing employees who “refuse to operate” a vehicle because of safety concerns. Every other judge who considered the case, along with the U.S. Department of Labor, found that the trucker was protected by that law. Gorsuch disagreed. “The trucker in this case wasn’t fired for refusing to operate his vehicle,” Gorsuch wrote. “The trucker was fired only after he…chose instead to operate his vehicle in a manner he thought wise but his employer did not. And there’s simply no law anyone has pointed us to giving employees the right to operate their vehicles in ways their employers forbid.”
“Maybe someday Congress will adorn our federal statute books with such a law,” the judge needlessly added. “But it isn’t there yet. And it isn’t our job to write one.” It was one of several passages in a beautifully written dissent that, depending on your perspective, was either clever or snide, or both.
To support his cold-blooded interpretation, Gorsuch obligingly provided an Oxford English Dictionary definition of operate: “to cause or actuate the working of.” This was Gorsuch trying to show off what a master of textualism he was—a judge after Scalia’s own heart. But the other two judges on the case ridiculed Gorsuch’s selectivity and instead found a different dictionary definition: “to control the functioning of.” That definition, wrote the other judges, “clearly encompasses activities other than driving.” For that reason, Gorsuch’s conclusion “that a truck driver is ‘operating’ his truck when he refuses to drive it but not when he refuses to remain in control of it while awaiting its repair, is curious.” And in a gibe at the notion that textualism slays subjectivity, the other judges then suggested Gorsuch had “concluded Congress used the word ‘operate’ in the statute when it really meant ‘drive.’ ” Portraying Gorsuch as a judicial activist, they wrote, “We are more comfortable limiting our review to the language Congress actually used.”
Democratic senators could have used those dueling opinions to show that at best Gorsuch oversimplified the difficulty of interpreting statutes—or at worst he was a fraud, who was no judicial minimalist and who simply didn’t have much respect for legislators. Or they might have invoked a favorite example of Justice Breyer’s, which he used in a 2003 case: “ ‘No vehicles in the park’ does not refer to baby strollers or even to tanks used as part of a war memorial.”
It was one thing for Gorsuch to acknowledge that judges could reasonably differ on a statute’s meaning, but quite another to insinuate that whoever wrote the law was a nitwit and that the judge’s role was only to follow the text as nitwitly drawn. What happened to “putting on a robe” as a reminder of “it’s time to lose our egos,” as he had put it during his opening statement? Gorsuch had spent much of his career belittling Congress and the unchecked discretion that courts, employing Chevron deference, gave to federal agencies. But senators instead used the case of the frozen trucker only to paint Gorsuch as an enemy “of the little guy.” That was as overly facile as Gorsuch’s opinion.
Moreover, it would be hard to justify voting against Gorsuch based on one ill-considered opinion, even if he compounded the mistake by attempting in his testimony to score sympathy points. “This is one of those [decisions] you take home at night,” he said. And why was that? If, as he told his inquisitors, “my job is to apply the law that you write,” and he did so faithfully, then he ought to sleep like a baby for honoring his institutional role in the legal system. Any sleeplessness should plague the legislative nitwits instead. Or was Gorsuch now conflating sound judging with rational outcomes? No senator bothered to pursue such inconsistencies. Gorsuch was testifying during an especially crazy week of the Trump presidency—the inquiry into Russian meddling in the 2016 election was intensifying, and the House was failing in another attempt to repeal Obamacare—but one might have thought Democratic senators would be more on their game in a pivotal confirmation feud.
There was one other particularly startling moment during the hearings. On the third day, as Gorsuch was still testifying, right across the street, his potential colleagues on the Court issued a unanimous ruling that humiliated him briefly—which senators quickly noted. In a special-education case from Colorado, Chief Justice Roberts, writing for the Court, found that the Individuals with Disabilities Education Act required school districts to provide substantial benefits to students. Roberts rejected a lower-court test of “merely more than de minimis.” The author of that weaker standard, in an earlier case involving an autistic student, was Neil Gorsuch. Senators immediately confronted him in real time about the Court’s rebuke.
It may be, as he tried to explain to senators, that he had thought he was only applying precedent. But he could not hide his irritation at the Court’s slapdown. During a recess, as soon as he entered the anteroom to the hearings, he said so. He was both dumbfounded and livid that the justices would release an opinion in the middle of his testimony that made him look bad. The justices had settled on the opinion the prior week—could the chief behind closed doors not have delayed the ruling? Rulings are routinely put off, for example, to fine-tune language. Better yet, to avoid someone someday possibly accusing him of playing confirmation politics with the date of an opinion, could not Roberts have planned further ahead so the ruling wasn’t close to being final at the time of Gorsuch’s hearings—which were announced a month in advance?
Such machinations were not beyond the tactical capabilities of the chief justice, according to Gorsuch’s supporters. The grievance of course assumed Roberts even knew that Gorsuch had authored the weaker standard. The chief didn’t, and in fact was chagrined about the timing of the Court’s ruling. Besides, the chief liked Gorsuch and thought his treatment by the Judiciary Committee was an abomination.
In the hive mind of the Trump White House, Roberts’s decision to release the opinion when he did was another reminder that the chief justice was a faux conservative, disloyal to the Republican cause. Why would Roberts have embarrassed Gorsuch so plainly? The administration, as well as a few of Gorsuch’s former clerks, believed it wasn’t malevolence, just the chief making the nominee dance a bit. The more skeptical in Gorsuch’s camp also wondered if Roberts might have felt slighted that Gorsuch chose not to follow Roberts’s confirmation script from 2005, in effect showing him up. Whereas the chief had indicated his approval of a range of uncontroversial Court rulings, Gorsuch yielded nothing, insisting that doing so would mean prejudging subsequent appeals.
Gorsuch and the chief justice would be serving together on the Court, potentially for decades. Ideologically, they would likely be allies more than foes. So it made sense for them to get along. But even after he was confirmed, Gorsuch remained rankled.
For their part, Republican senators had little interest in exploring the nominee’s rulings, his views on the role of precedent, or his larger judicial philosophy. Instead, those senators preferred oh-so-folksy diversions on subjects that ranged from pet goats (including “Nibbles,” his favorite) and fly-fishing (with Scalia, no less) to mutton-busting (where children at rodeos try to ride sheep) to whether Gorsuch would rather fight 100 duck-size horses or a single horse-size duck. Any connection between those animal exploits and constitutional law wasn’t apparent. The highlight among the digressions was Senator Ben Sasse’s inquiry about Gorsuch’s bladder. “How in the world is Gorsuch able to go so many hours at a time without peeing?”
The judge declined to answer.
Nor was it a shocker that Democratic grumbles about the frozen trucker or the special-education case or Gorsuch’s unctuous demeanor or his refusal to castigate Trump’s broadside against federal judges fell on deaf GOP ears. Gorsuch held his own, even if he wasn’t the natural that Roberts had been in his confirmation hearings. Nor had Gorsuch come across as unaffected or funny, the way Kagan had in 2010. Each time Gorsuch said he’d be “delighted” to answer a question, it was clear he wasn’t. About the only upside to the entire exercise was seeing a future Supreme Court justice grovel for the last time in his professional life.
Along straight party lines, the Judiciary Committee voted 11–9 to send Gorsuch’s name to the full Senate. Democrats followed through with—surprise!—a filibuster, even if they still couldn’t agree on why they were mounting it. For pure theater and C-SPAN addicts, one Democrat (and Ironman triathlete), Jeff Merkley of Oregon, held forth on the Senate floor overnight for 151/2 hours, accusing the GOP of trying “to take control of the federal judiciary.” Republicans then followed through with the nuclear option, high-fiving each other after they turned the missile keys. The filibuster as applied to Court nominations was dead. Each side bewailed what the other was doing and what that presaged for the Senate.
McConnell—who for a year denied Merrick Garland a hearing—said Democrats were “hurtling toward the abyss” and “trying to take the Senate with them.” Not so, answered the Democratic leader, Chuck Schumer. “When history weighs what happened,” he said, “the responsibility for changing the rules will fall on the Republicans,” conveniently forgetting it was his party that four years earlier went nuclear for lower-court judges. A few senators mourned what they themselves were doing. Anybody who thought going nuclear was good for the Senate, John McCain, a Republican, said, was a “stupid idiot.” McCain then voted to go nuclear.
Another Republican, Lindsey Graham, accidentally offered the smartest observation, seeming to recognize that polarization begets polarization. “Every Senate seat now becomes a referendum on the Supreme Court,” he said, before he, too, voted in lockstep with all other Republicans to get rid of the filibuster for Court nominations. That would probably mean the most ideologically oriented senators would have the most to say about whom a president nominated, which would produce more extremist nominees. That new reality, Graham said, “is going to haunt the Senate.” More to the point, it would haunt the Court—confirming that, as far as the other two branches of government were concerned, its nine seats were little more than political spoils.
The Court largely had itself to blame for that. By stepping into so many issues, it raised the stakes of appointments. Presidents and senators reacted logically. Now, the Senate had changed the rules to allow more radical justices to be appointed—which in turn might produce a more aggressive Court, which in turn put that much more pressure on presidents and senators to seek extremist justices.
Ending the protracted battle over Scalia’s seat, on April 7, 2017, the full Senate confirmed Gorsuch as the 113th justice. The vote was 54–45—the closest margin of approval since Clarence Thomas’s nomination in 1991—with three Democrats in purple states voting with the GOP to confirm. Three days later, Gorsuch was sworn in. It was a rare triumph for the nascent Trump administration, and the president lapped it up. Appointing a justice is “the most important thing a president of the United States does,” he said. “And I got it done in the first 100 days!” But with everything else going on—the American bombing of a Syrian airfield, continuing questions about Russian interference with the presidential election, Republican turmoil over legislative priorities—the country seemed to shrug. Gorsuch’s confirmation didn’t make it onto many front pages. Neither the media, nor much of the electorate, seemed to appreciate the significance.
Many months later, as the first anniversary of Trump’s election neared, McConnell took note during a joint press conference with the president. Whatever else Trump had failed to accomplish on immigration, health care or energy policy, McConnell proclaimed that “the single most significant thing this president has done to change America is the appointment of Neil Gorsuch to the Supreme Court.” Conservatives who found Trump otherwise distasteful consoled themselves that they had the perfect justice; they circulated an online meme of the nation under water but with the floating road sign BUT GORSUCH.
Trump almost snatched defeat before the victory. Like other Court nominees, Gorsuch had participated in a days-long dog-and-pony show on Capitol Hill, meeting with many senators for private conversations ahead of confirmation hearings. After one such meeting, Senator Richard Blumenthal, a Democrat, announced that Gorsuch had told him that Trump’s attacks on the federal judiciary were “disheartening” and “demoralizing.” Gorsuch’s words were carefully chosen, discussed with handlers in advance. His aim wasn’t tactical, as if to distance himself from the president and perhaps appeal to a few Democrats. Rather, he simply found Trump’s attacks offensive. And he had begun to chafe at the entire appointments process. Being pawed over by vetters, being attacked in the press, being holed up many days in a suite in the Eisenhower Executive Office Building adjacent to the White House (what he called his “North Korean holding pen”)—the whole thing was demeaning.
The president read of Gorsuch’s comments and erupted—tweeting that Blumenthal had misrepresented Gorsuch’s words, but then privately bellowing to aides that Gorsuch wasn’t being “loyal.” Gorsuch’s handlers from the White House were told that Trump was talking about pulling the nomination. They advised Gorsuch so, as they continued to make the rounds on Capitol Hill. According to one account, Trump that evening whined to friends that he should have nominated Rudy Giuliani, the former mayor of New York City, even though Giuliani wasn’t on Trump’s list of 21.
Gorsuch was peeved. “Could you walk back what you said to Blumenthal?” asked Kelly Ayotte, the former Republican senator from New Hampshire, who was Gorsuch’s sherpa on the Hill. Much as he wanted to be a justice, he refused. Instead, he said, if the pressure continued, “I’ll get on a plane and fly home to Colorado tonight.” Later, he joked that if he withdrew his name, he could “write a book and make millions.”
But like other momentary presidential explosions, this one passed. Trump stopped his threats, and Gorsuch ceased his. It didn’t hurt Gorsuch’s standing with the president that Gorsuch a few weeks later sent him a gushing handwritten note. “Your address to Congress was magnificent!” Gorsuch wrote of Trump’s first address to a joint session of Congress. “And you were so kind to recognize Mrs. Scalia [the justice’s widow Maureen]…and mention me. My teenage daughters were cheering the TV!” The note came so long after Trump’s threats that it seemed unlikely Gorsuch was sucking up. He just was feeling good that a crisis was over, and he was given to fulsome thank-yous to those who wound up doing right by him.
At the Court, the conservative justices were mostly pleased they got what looked like a reliable, intelligent comrade. Considering who had nominated Gorsuch, they had worried they might get someone lacking in threshold credentials who might vote with them, but would tarnish the Court’s image. But the chief was in a tougher position receiving Gorsuch, not Garland, as his newest colleague. Not only did he know Garland from their time together on the D.C. Circuit—and respect his craftsmanship—but Garland also was the reason Roberts got his clerkship with Judge Henry Friendly. More than Alito and Thomas and Kennedy, Roberts recognized what the Court was losing without Garland.
Gorsuch became the latest player in a long narrative about the Court’s role in society. Even though he was replacing the conservative Scalia, the institution inevitably would change. It wouldn’t be just a new arrangement of the lockers in the robing room or a different seating chart on the bench. When there are only nine people in the cast, personal dynamics count. Rapport matters. Trust forms. One of Gorsuch’s mentors, Byron White, often had said that each time a new justice arrived, “it’s a new Court.”
It surely was after Gorsuch got there, marking an end to the perverse calm of the 2016–17 term. That relative lack of drama was a by-product of the political impasse that Scalia’s death had triggered. The eight-justice Court had taken fewer big cases, and the cases it did take sometimes were decided 4–4, which under Court practice upheld the lower-court ruling but without setting any precedent. Opinions that did get written produced narrower rulings, more consensus, more caution. But those attributes weren’t the result of newfound wisdom—only that there wasn’t a fifth vote to go big and decide more controversial cases. While it took only four votes for the Court to agree to hear a case—one fewer than a majority of the full Court—the justices were reluctant to do so if it looked like an eight-member Court would be split. With Gorsuch on board, the Court could resume its triumphal march. As the term ended, the justices agreed, in a flurry of orders for the fall of 2017, to hear potential blockbusters on partisan gerrymandering, presidential authority, the power of public unions, and whether freedom of religion permitted discrimination against same-sex couples. The presence of Gorsuch was the difference why. An even more assertive docket was likely after Kennedy retired in 2018 and the conservatives solidified their majority.
In his initial months on the Court, Gorsuch bonded only with Thomas—whose chambers were next to his, and who alone joined Gorsuch’s first dissent in late June 2017. Although the case was minor, concerning the procedure for federal workers filing discrimination claims, the White House noticed. “So far, Gorsuch has a perfect record being with Clarence Thomas!” one of Trump’s advisers told a colleague that day. In most of the cases in which he participated in his first months, Gorsuch and his new best friend composed what could be called the Tea Party fringe of the Court, of which not even Alito seemed a part. Several officials in the administration were so happy that they mused about Gorsuch as a future chief justice if their fondest wish ever came true and Roberts left prematurely.
Gorsuch was with Thomas not only in head count, but also when Thomas filed a concurring opinion to stake out an outlier position unnecessary to resolve a specific appeal. (Concurrences allow justices to agree with the outcome in a case but not the reasoning the majority used to reach it.) Gorsuch did precisely what a true minimalist jurist should avoid—setting broad rules in the manner of legislators. A real conservative on the bench takes individual disputes as they come, allowing “the law” to work itself out measuredly, in dialogue with lower courts and at times with Congress as well. Gorsuch wanted none of that. Said one clerk, “He came here instantly willing to burn down the house to do what he was sure was right.”
Although a handful of early opinions—on President Trump’s travel ban, on carrying concealed guns in public, and especially on an Arkansas statute involving gay rights—didn’t set Gorsuch in ideological stone, the only question seemed to be whether he would turn out to be even more conservative than Thomas or, for that matter, Scalia. Gorsuch was like an eight-year-old in a counterrevolutionary candy store. So many lower court rulings to overturn, so many errors of his colleagues to point out: unfair Second Amendment restrictions here, wrongheaded rights for gays and lesbians there! Soon, he was enlightening Ginsburg on how to interpret statutes. She and six other justices had found a reasonable way to reconcile a procedural flaw in a minor law. Bad judging, Gorsuch declared: “If a statute needs repair, there’s a constitutionally prescribed way to do it. It’s called legislation.” A few days later, it was Roberts who apparently needed instruction, this time on the proper way to write opinions. They should be based on “general principles,” not “ad hoc improvisations,” Gorsuch explained in a freedom of religion case.
In early 2018, Gorsuch and Ginsburg were back at it. In a highly technical case on jurisdiction, a Gorsuch dissent went on about G.K. Chesterton’s “fence,” using the metaphor to argue that “we’ve wandered so far from the idea of a federal government of limited and enumerated powers that we’ve begun to lose sight of what it looked like in the first place.” In her majority opinion, Ginsburg didn’t conceal her contempt, 11 times taking on Gorsuch’s “mighty strivings” and “absurdities.”
Gorsuch’s aggressiveness didn’t much resemble the modest approach he had described before the Senate. Nor did his votes seem consistent with his repeated confirmation homily about there being “no such thing as a Republican judge or Democratic judge.” In fact, his views seemed nicely aligned with the 21st-century GOP party line. Life tenure can do that to a person.
His own clerks delicately asked if he really wanted to be a pacesetter from the opening gun. “Are you sure you should be doing that?” asked one. “Will the chief be mad?” asked another. The second question was particularly astute, for the Gorsuch-Roberts relationship was already rocky. Gorsuch had not forgotten the Court ruling he believed embarrassed him during his confirmation hearings. It didn’t help either that Gorsuch got grief at the very outset of his arrival at the Court. Roberts had suggested he attend the regular justices-only conference, which was taking place three days after he was sworn in. Gorsuch declined because he had yet to get up to speed on cases that would be discussed, and he needed to catch his breath after enduring the confirmation process. “Do you realize what I’ve just been put through?” he told another justice. He also had a long-standing date to take one of his daughters on a college visit.
Roberts was exasperated. He thought Gorsuch was disrespecting the Court by declining the invitation to “the conference,” as it was called. To Roberts’s detractors—in Gorsuch’s camp and in other chambers—this was an example of the chief acting “chief-y.” Roberts had no authority to order Gorsuch to be anywhere, but he was trying anyway. Since Gorsuch couldn’t participate in cases until he made sure he had no conflicts of interests, attending would be a pointless exercise. But the chief was worried about the Court’s image—about the new guy not being engaged and the press then having sport with it (which the press dutifully did). That concern for the Court, his critics alleged, was really more concern for his own image as chief. The critics loved to titter about how Roberts tried to choreograph any photo-op in which he appeared. Two rules: No photographs from behind him—that would highlight his bald spot. And never place too many tall people near the chief—it made him look smaller. (At a “class photo” shoot of the justices and clerks in the spring of 2017, two tall Thomas clerks had to move far away from the chief.) It was a close question whether the titters revealed more about the chief or the critics.
The chief also was displeased when Gorsuch disclosed he wouldn’t be part of the “cert pool,” which most justices had long used to reduce the burden of reviewing which cases to hear. Roberts thought the pool, which his chambers administered, made the Court more efficient. Although in recent terms the Court heard only 70 or so cases annually, it had to choose from among the 6,000 to 8,000 petitions that sought review of lower-court decisions. Losing parties had to file a “writ of certiorari” that demonstrated an important issue was in play. If at least four of the nine justices thought the issues weighty, the Court “granted cert.” Otherwise, it “denied cert” and the lower-court ruling stood.
Going through thousands of petitions takes time, and none of the current justices other than Alito wanted to invest it. Instead, they assigned their clerks to the cert pool, which dates to the 1970s. Each petition was analyzed by a single clerk, who made a recommendation to grant or deny review. Justices then decided. Because each chambers no longer had to peruse every petition, the pool made life as a justice, and as a clerk, a lot easier. The pool also operated to make the docket even smaller, since a clerk who recommended a denial got in less trouble than one who granted cert that later turned out to be unwise. The problem with the system was that it invested vast discretion in newbie lawyers. Like Alito, Gorsuch wanted to read all the petitions himself. If his decision was meant to have any import, it was to signal independence, not to goad the chief. But around the courthouse, clerks saw it as accomplishing both ends.
An insignificant criminal case in late June 2017 offered a glimpse of the Gorsuch-Roberts byplay. An inmate in central Texas named Marcus Hicks claimed he had been wrongly sentenced to 20 years. Seven justices agreed. Without hearing argument and without issuing an opinion, the justices summarily returned the case to a lower court to reconsider the sentence. Roberts, joined by Thomas, dissented, saying the law was more complicated and the Court had acted rashly. It was a dissent—the chief lost. Gorsuch was part of the majority—and won. But he still wrote a lone concurrence to scold his colleagues on both sides that the Court hadn’t done enough and that Hicks was automatically entitled to a lesser sentence.
Roberts couldn’t let that go. In his two-paragraph dissent, he twice referred to the misguided views of “my colleague” rather than “Justice Gorsuch.” The use of “my colleague” didn’t prove there was friction, but it was an odd, suggestive usage, and there’s no more meticulous writer on the Court than Roberts. Only once before in his 12 years as chief had he referred to another justice that way, and in that case he was referring to Justice Breyer when he was a lower-court judge. In the last of his digs, Roberts mocked Gorsuch for claiming, as Roberts put it, that the case “is a no-brainer.” Other than to Hicks, the case didn’t amount even to small potatoes. But for Gorsuch and Roberts, on the last day of the term, it was a chance to have at each other.
For their part, the dispirited liberal justices hardly could miss Gorsuch’s ways, both in substance and in attitude. New justices normally tread lightly, like rookies on a sports team. They observe how others do the job, soaking up the indigenous culture. “I was frightened to death for the first years,” Breyer once told an interviewer. “I was afraid I might inadvertently write something harmful.” How new justices behave—how much they adhere to the Court’s seniority-based norms, quite apart from how they vote—can affect what colleagues think of them. It doesn’t go over well to claim to be the smartest person in the room when everybody else in the room does, too—and they’ve been there a lot longer than you.
Once he started going to the justices’ conference, which meets once or twice a week when the Court is in session, Gorsuch did fine. The conference takes place in a sanctum sanctorum—the large white-oak-paneled room within the chief’s chambers, lined with hundreds of volumes of Court decisions on built-in bookcases. Only the nine justices attend. Clerks and staff aren’t even allowed through the heavy unmarked double doors. As secret a meeting as any in American government, the conference is highly formal, with each justice sitting in an assigned seat based on seniority, each speaking and voting (on cert petitions and actual appeals) by seniority as well. All discussions are preceded by the ritual 36 handshakes, every justice with each of the others. It is the job of the most junior justice, now Gorsuch, to answer knocks on the outer door and to handle other mundane chores. Gorsuch was personally congenial and ably fetched coffee.
But in 12 weeks, he had shown himself to be a destabilizing upstart who was in an ideological hurry, taking over parts of some oral arguments and brimming with smarty-pants self-confidence that approached condescension. On the bench, eyes rolled. Off the bench, the other justices thought No. 9 was getting too big for his britches. It wasn’t that they shunned him—only that they were disinclined to welcome him with the open arms that greeted most new arrivals. That didn’t mean a change in voting outcomes—only that Gorsuch’s opportunity for engaging his colleagues, which might help in close cases, would be limited. Scalia, his idol, knew this well. While personable, his unceasing jabs at Kennedy and O’Connor in his opinions hindered his ability to talk things out with them, in the conference or in chambers. Scalia was a fine hunting buddy, but many of the justices didn’t want any part of him at work. He had unquestioned influence at the Court, but it was despite his manner. The early question about Gorsuch was whether he was following that example.
No case was too small for Gorsuch to opine on, even when most of the other justices did not. “Dude, pick your spots!” suggested a law professor who had clerked for Kennedy. Some of the clerks in other chambers took an instant aversion to the mien of the new justice. Late in the term, a retinue of clerks took him out for lunch and found him still in gosh-golly-gee Senate confirmation mode. “He kept telling us how he liked to watch the sun set over the mountains,” according to one of the clerks. Even when it came to the humdrum, Gorsuch didn’t quite fit in. All the justices have their own official Court photo. It’s like a yearbook portrait: you’re smiling and coiffed, the lighting’s perfect. Gorsuch’s is so blurred it’s unusable. He wouldn’t sit long enough for the photographer—too much bother. The wisecrack around the building was that Gorsuch had succeeded in unifying the Court: Just about everybody other than Thomas couldn’t stand him most of the time.
“I respect all of my colleagues and genuinely like most of them,” Ginsburg told an audience at Columbia University in February 2018. Hmm, given her expressed affection at different times for Roberts, Kennedy, Breyer, Sotomayor and Kagan, that reduced the other possibilities.
However, the liberal justices, just like liberal advocacy groups, were still figuring the Court seat to worry about was Kennedy’s. The Gorsuch-for-Scalia swap seemed to mean little in terms of case outcomes, whereas in a Trump administration, a Kennedy retirement might result in resolute conservative control. The justices themselves had been speculating about whether AMK, as insiders referred to him, would retire in June, at the end of the 2016–17 term. Enjoying the attention, Kennedy divulged nothing; “Sphinx-like,” a colleague called him. Ginsburg was left to ask clerks around the building if they’d heard anything.
But the liberals quickly came to see the reality that Gorsuch’s presence drove home. The point wasn’t that his votes were meaningfully worse than Scalia’s. It was that Gorsuch was 30 years younger and raring to go. Days after the term ended, the new justice rode atop a ’59 Cadillac convertible in a Fourth of July parade back in Colorado like a returning political hero, shaking hands and complimenting kids in cowboy hats. By contrast, Breyer used the holiday to recite the Declaration of Independence, without fanfare, under an American flag, to a small group of residents in the New Hampshire village where he summered.
What’s more, Gorsuch’s seat was now presumably lost to the liberals for a generation. With the theft of that seat, the liberal wing of the Court had missed its best opportunity since the late 1960s to have a working majority, with five justices appointed by a Democratic president. Liberal advocacy groups abandoned plans to initiate lawsuits that might someday lead to a Court ruling dismantling loathed decisions like Heller and Citizens United—just as conservative groups now started maneuvering on the best way to challenge rulings like Roe and Chevron. Gorsuch was a reminder of what could have been, for one side, and what was surely to come, for the other. Elections have consequences.
Byron White’s line about a “new Court” each time a justice arrived had an obvious corollary: It’s a big adjustment for the new justice. When Thomas was confirmed in 1991, White advised him, “Well, Clarence, in your first five years you wonder how you got here. After that, you wonder how your colleagues got here.”
How the current justices got there is a story of politics and circumstance, guile and chance. What they all shared was a view of the Court’s ascendancy in American government.