Chapter 17
April 2017: Gorsuch Gets Garland’s Seat
Neil Gorsuch’s mother started out as a right-wing Republican firebrand who served in the Colorado House of Representatives in the 1970s—and was “a member of a conservative group called the ‘House crazies,’ ” as the Associated Press reported. One fellow Colorado legislator found Gorsuch so “haughty,” she dubbed her “Queen Anne,” a sobriquet that morphed into “The Ice Queen” during Gorsuch’s time in Washington, D.C. Her surgeon father had instilled in her when she was quite young a belief that education was “the be-all and end-all,” and when she was in grade school sent her to Mexico for summers to learn Spanish with nuns. A bright and ambitious student from an early age, she completed her undergraduate studies at the University of Colorado at Boulder at nineteen and her law degree at twenty-one. She worked as an attorney for Mountain Bell Telephone and, in an early sign of her propensity for ethical lapses, stated flat out in an interview that, elected to the Colorado House of Representatives, she saw no reason to abstain from votes potentially affecting the phone company’s interests.
After Gorsuch was appointed by Reagan to her EPA role—chosen for being a brassy, take-no-prisoners type who could be counted on to horrify liberal proponents of safeguarding the environment by hobbling the agency’s efforts—she and her family moved to Maryland and her oldest son, Neil, attended Georgetown Prep (the same Catholic school as Brett Kavanaugh). A look through his 1984 high school yearbook tells a dramatic story: In half a dozen pictures, young Gorsuch never smiles. He was no loner. The next year, he’d be elected senior class president. But in 1984 he looks sullen, depressed, almost on the edge of tears in one picture, of the International Relations Club; young Gorsuch, the only student among the twenty-one pictured in a double-breasted jacket, stands at one end, seemingly to lean against a wall for support, hands clasped tightly together, looking a little like the Timothy Hutton character in Robert Redford’s 1980 family melodrama Ordinary People.
Neil Gorsuch looks deeply traumatized, and he was—a full year after his mother resigned from the EPA. As she wrote in her 1986 autobiography (written as Anne Burford), Are You Tough Enough? An Insider’s View of Washington Power Politics, her stormy twenty-two-month run as EPA administrator was hard on her son, especially the ignominious circumstances of her 1983 ouster. Neil, she wrote, “got very upset.” She repeats the word “upset” twice. “Halfway through Georgetown Prep, and smart as a whip, Neil knew from the beginning the seriousness of my problems,” she writes. “He also had an unerring sense of fairness, as do so many people his age.”
“You should never have resigned,” her son told her “firmly,” she relates. “You didn’t do anything wrong. You only did what the President ordered. Why are you quitting? You raised me not to be a quitter. Why are you quitting?”
“Honey, relax,” she told her son. “It isn’t everything it appears to be. I can’t explain it all to you now, but don’t be upset.”
She had a point about the circumstances of her ouster being complicated. As only the third EPA administrator since its founding in 1970, Gorsuch oversaw environmental cleanup at a pivotal time. A common move of post–Powell Memo–type conservatives, intent on letting big business run rampant with little restriction or regulation, was simply to slow-walk allocated funding, and Gorsuch ran into trouble for her agency’s handling of the $1.6 billion Superfund for cleaning up toxic-waste sites. Gorsuch oversaw a reduction of EPA staff, and cuts in its budget—though, in fairness, she actually fought for fewer cuts than some in the Reagan administration wanted. Her use of the Superfund as a political tool—whether or not on orders of the White House—was an egregious violation of public trust.
As The New York Times reported in a bombshell revelation on March 7, 1983, “Last week, Richard Hauser, the deputy White House counsel, said one or more Reagan Administration officials had reported to the White House that they had heard the E.P.A. administrator say at an August 4 luncheon aboard the former Presidential yacht Sequoia that she was holding back more than $6 million in Federal funds to clean up the Stringfellow Acid Pits toxic waste site near Los Angeles to avoid helping the Senate campaign of former Gov. Edmund G. Brown Jr. of California, a Democrat. Mr. Brown subsequently lost the seat to the Republican candidate, Mayor Pete Wilson of San Diego.”
Multiple congressional committees were investigating. The previous December, Gorsuch had also been cited for contempt of Congress for refusing a congressional subpoena to turn over documents to a subcommittee. Shortly afterward, she remarried and began going by the name Anne Gorsuch Burford. “Mrs. Burford has told aides that from the beginning she recommended that Congressional investigators be given full access to all documents,” the Times reported, “but was overruled by the Justice Department and White House legal counsel’s office.”
Two days later, Burford resigned, clearly taking the fall to avoid further political harm to the White House—as her son correctly enough noted. As she wrote in her resignation letter to Reagan, “Without an end to these unfortunate difficulties, EPA is disabled from implementing its mandate and you are distracted from pursuing the critical domestic and international goals of your administration.” Summed up The Washington Post, “Her resignation climaxed weeks of intensifying controversy over the EPA involving allegations of political manipulation, mismanagement and conflicts of interest that made her appear an unacceptable political liability to a growing number of senior White House aides and Republican politicians.”
It’s hardly a surprise that so public and mortifying a drama would leave Neil, as the oldest son, deeply shaken, and convinced of his mother’s unjust treatment at the hands of callow Washington veterans. He internalized a deep-seated, almost religious conviction that the power and scope of government agencies needed to be reduced—his mother’s mantra in her time at EPA. From his father, another Colorado attorney, his son inherited a love of the rugged nature of their home state, as an avid fly fisherman and skier; he also clearly had his mother’s sharp mind and impatience with those he saw as less intelligent. From Georgetown Prep he moved on to Columbia and Harvard Law, where soon after graduation he cowrote an essay for the libertarian Cato Institute—with Michael Guzman—on term limits that earned the approving attention of syndicated columnist George F. Will.
Like his mother, Neil Gorsuch cared little what anyone—especially anyone on the left—might make of his open partisanship. As a partner at the D.C. firm Kellogg, Huber, Hansen, Todd, Evans & Figel, he also wrote opinion articles for publications like National Review Online, including one in February 2005 that looks especially dubious in hindsight. In Gorsuch’s telling, it was “American liberals” who had become “addicted to the courtroom, relying on judges and lawyers, rather than elected leaders and the ballot box, as the primary vehicle for effecting their social agenda.” He adds, in words that ring true enough today, though clearly not in the way Gorsuch would have it, “This overweening addiction to the courtroom as the place to debate social policy is bad for the country and bad for the judiciary.” A simple and concise damnation of what the Thomas Court has become.
In May 2006, Gorsuch was appointed to the Tenth Circuit Court of Appeals by President George W. Bush and confirmed by the Senate with no controversy. By 2014, Linda Greenhouse would be describing Gorsuch in the Times as “a rising star among Republican-appointed judges on the federal appellate bench.” One year earlier, in 2013, Gorsuch had received his right-wing legal establishment coronation via an invitation to deliver a lecture at the Federalist Society annual dinner. “A culminating event at the society’s yearly conference, the lecture was named for Barbara Olson [Ted Olson’s wife], the conservative lawyer and TV commentator killed in the terrorist hijackings on September 11, 2001, when her flight from Dulles was plunged into the Pentagon,” Joan Biskupic wrote in Nine Black Robes. Earlier Olson lecture speakers included Antonin Scalia, in 2004, and John Roberts, in 2007.
Very much his mother’s son, Gorsuch opened his speech with what for him was a feel-good round of venting on the subject of rampant federal regulation, a surefire warm-up for that crowd. “Today we have about 5,000 federal criminal statutes on the books, most of them added in the last few decades, and the spigot keeps pouring, with literally hundreds of new statutory crimes inked every single year,” Gorsuch said early on. “Neither does that begin to count the thousands of additional regulatory crimes buried in the federal register. There are so many crimes cowled in the numbing fine print of those pages that scholars have given up counting and are now debating their number.” This was no rabblerousing speech. Gorsuch felt no need to make headlines with a controversial address to raise his profile. He was content with a dry oration, leavened with the occasional attempted joke, that made serious points for what he saw as a serious audience.
Don McGahn, Trump’s White House counsel, saw in Neil Gorsuch the mother’s son: He was a committed opponent of federal regulation in all its various guises. Gorsuch made the long list of potential Supreme Court nominees candidate Donald Trump released during 2016, one of twenty-one, and when the list of possible choices was reduced to eight, after Trump’s election, Gorsuch found himself still under consideration. McGahn would later joke that the White House had “insourced” rather than “outsourced” its process to the Federalist Society—so close in was the organization. In late January 2017, Gorsuch was formally nominated by Trump, the youngest Supreme Court nominee, at age forty-nine, since Clarence Thomas (forty-three) in 1991, to assume the seat on the court held by Scalia up until his February 2016 death—which should have been Merrick Garland’s seat.
Gorsuch was hailed upon his nomination as in effect Scalia with better manners, an adherent to the Scalia pet theory of originalism, a nod to the Founding Fathers that in practice amounted to giving yourself license to rule however you want, based on political tides, and then claiming high-minded justification. Gorsuch dressed the doctrine up this way, with his own style of eloquence: The Constitution, he argued, “isn’t some inkblot on which litigants may project their hopes and dreams for a new and perfected tort law, but a carefully drafted text judges are charged with applying according to its original public meaning.” Scalia himself had put it this way, also eloquent, also backward: “The Constitution that I interpret and apply is not living but dead, or as I prefer to call it, enduring. It means today not what current society, much less the court, thinks it ought to mean, but what it meant when it was adopted.”
Barring some science-fiction tools to go back in time, to gain some meaningfully complex understanding of the realities of the years in which the Constitution was hammered out and adopted, these pretty words are just that, smoke in the wind, lofty nothingness. “Originalism” was a slogan to push extreme interpretation, a tool, nothing more or less than that. Its power, if it had power, came not in eloquence or in fine reasoning, as the gushing encomia too often put it, but in how it was used as a lever. The rise of originalism charted the rise of Federalist Society power that brought the takeover of the courts. “What drove the increasing acceptance of originalism on the Supreme Court was Scalia’s uncompromising commitment to his personal judicial philosophy and the growth of the conservative Federalist Society in academia, spawning, in turn, more and more advocates of the theory,” NPR reported. From Reagan to Bush, Republican presidents had the good fortune to fill seven Supreme Court seats. “At each rotation, the new justice was more conservative than the person he or she replaced. That, too, reflected the increasing conservative drift of the Republican Party, with evangelicals and other social conservatives gaining more power and influence.”
Neil Gorsuch apparently learned from his mother’s ordeal the dangers of lying to Congress, and, though only fitfully, was actually at times direct and honest in handling questions from Congress after Trump nominated him to fill the long-vacant Scalia seat on the Supreme Court. How had Gorsuch come to President Trump’s attention?
“I was contacted by Leonard Leo,” he answered.
Leonard Leo, once again, said he was taking a short leave of absence from the Federalist Society to spearhead the Trump administration drive to confirm, though of course Leo would continue to coordinate his network of dark money to push millions of dollars wherever it might help influence media figures or lawmakers, an arrangement of questionable legality. In selecting Gorsuch for Scalia’s spot, Trump had asked specifically why he thought past Republican nominees had shifted left—or lacked “backbone,” as he put it. There would be no such doubts about Gorsuch, who had defended administration antiterror policies as a Bush Justice Department official, and who had been elevated to the Tenth Circuit Court of Appeals by Bush. Gorsuch had been recommended for the lower court appointment by Philip Anschutz, a right-wing Christian billionaire industrialist who supported antigay causes and groups, such as the Leo-aligned Alliance Defending Freedom and the Family Research Council. Anschutz, a major donor to the American Enterprise Institute, the Federalist Society, and the Heritage Foundation, also owns the right-wing Washington Examiner, part of the conservative movement’s vast media ecosystem. It was all in the family for Gorsuch.
Gorsuch favored a broad definition of religious freedom inimical to advocates of church-state separation, raising grave doubts about where he would stand on Roe v. Wade. Despite his well-known positions and philosophy, under questioning in his Senate confirmation hearing, Gorsuch misleadingly told Dianne Feinstein that he would respect the precedent of Roe. Clearly coached to dissemble by emphasizing his belief in the “value” of precedent, he told her: “Part of the value of precedent, it has lots of value. It has value, in and of itself, because of our history, and our history has value intrinsically. But it also has an instrumental value in this sense. It adds to the determinacy of the law.”
Dick Durbin of Illinois then quizzed Gorsuch about a passage in one of his books in which Gorsuch wrote, “The intentional taking of human life by private persons is always wrong.” Durbin asked how that position squared with legal abortion. Gorsuch said, “Senator, as the book explains, the Supreme Court of the United States has held in Roe v. Wade that a fetus is not a person for purposes of the Fourteenth Amendment and the book explains that.” Durbin continued: “Do you accept that?” Gorsuch replied, “That is the law of the land. I accept the law of the land Senator, yes.”
Gorsuch, the tool of a highly partisan Federalist Society spending spree to install him and judges like him, was asked by Sheldon Whitehouse about the dark-money juggernaut arrayed behind him.
“Is it any cause of concern to you that your nomination is the focus of a $10 million spending effort, and we don’t know who is behind it?” Whitehouse pointedly asked.
Gorsuch’s deflection was breezy and supercilious.
“Senator,” he replied, “there is a lot about the confirmation process today that I regret. A lot.”
“Yes?” Senator Whitehouse asked.
“A lot,” Gorsuch repeated. “When [Supreme Court Justice] Byron White sat here, it was ninety minutes. He was through this body in two weeks. And he smoked cigarettes while he gave his testimony. There is a great deal about this process I regret. I regret putting my family through this.”
For the son of disgraced EPA administrator Anne Gorsuch, this last admission was personally revealing, but other than that, it was pure boilerplate, pure misdirection.
“But to my question?” Whitehouse persisted.
“Senator, the fact of the matter is, it is what it is, and it’s this body that makes the laws,” Gorsuch droned. “And if you wish to have more disclosure, pass a law, and a judge will enforce it, Senator.”
Or the Thomas Court will strike it down, citing Citizens United as precedent—as Gorsuch well knew.
Whitehouse, in his landmark series of Senate speeches outlining the dangers of the Federalist Society power grab, spoke in March 2022 about how Gorsuch defined the approach of would-be Federalist Society–anointed judges auditioning for a starring role, an intriguing exposition that also applies to Kavanaugh and Barrett. “Ambitious right-wing lawyers aspiring to the Federal Bench aren’t dumb,” Whitehouse noted dryly. “They will follow the path that guides them to their goal. So the maximum adherence auditioning began.”
Whitehouse had noted the example of a circuit judge who could not help but notice colleagues on the bench choosing certain cases, and writing certain rulings, that smacked of look-at-me posturing. They were, this judge observed, “auditioning”—as Whitehouse added, “auditioning for the Federalist Society gatekeepers.”
How exactly does this auditioning take place? As with any audition, you have to know your audience. The big donors being wooed care about issues like guns and easing limits on campaign spending and corporate political power; right-wing social issues; and of course, the evergreen right-wing topic of reducing the size of the “administrative state.” Again, as with any audition, you have to make sure to be heard. You have to project and have your voice carry. “Write opinions so extreme that they stand out and donors take notice,” Whitehouse summed up. And finally, find ways to give legal wins to the big donors.
Gorsuch put on a clinic in pulling the right strings, above all harping away constantly at the “administrative state,” a concept developed in the right-wing precincts of legal academia, such as the Antonin Scalia Law School at George Mason University. “To do that,” Whitehouse said, “he deployed radical legal theories cooked up and propagated in the scheme’s legal theory hothouse, where they developed schemes, kind of reverse-engineering them to give victories in cases.” He also made sure to come across as passionate about the right’s version of religious freedom, “which usually translates to dismantling the separation between church and State, which is another scheme favorite.”
The result of the Gorsuch confirmation hearings was foreordained; Leonard Leo had made sure of it. “You know, the hearings matter so much less than they once did,” Leo commented to New Yorker reporter Jeffrey Toobin, sitting in the back of the hearing room as the Gorsuch nomination was being considered. “We have the tools now to do all the research. We know everything they’ve written. We know what they’ve said. There are no surprises.” Not, that is, as long as Leo could enforce his will. In addition to having misled the Senate in his confirmation hearings on stare decisis, Gorsuch was also unquestionably illegitimate due to the unprecedented and unconstitutional maneuverings of Mitch McConnell prior to his ascension. This was, straight up, a stolen seat.
Like Thomas and Alito, Gorsuch also had a secretive right-wing benefactor with interests before the court, the aforementioned Phil Anschutz. The connection became problematic in the 2024 term, when the court heard a case that established the Chevron deference, which holds that federal courts should defer to federal agencies’ interpretation of congressional statutes. Chevron deference has long been in the crosshairs of the conservative legal movement and its war against the “administrative state.” If federal agencies lost power to regulate business and that power fell into the hands of the Leo-packed courts, a decision overturning the Chevron deference would be a boon to big business, which is where Anschutz figures in.
Anschutz holdings are vast, including oil and gas, fossil fuel extraction, and real estate. His ties to Gorsuch date from the 1990s, when Gorsuch was his lawyer. According to The New York Times, Gorsuch is a “semi-regular” speaker at a policy conference sponsored by Anschutz at a ranch in Colorado. And Gorsuch had a real estate investment with two top Anschutz deputies, the sale of which Gorsuch failed to disclose as required by law.
Gorsuch has long campaigned against the Chevron deference, a fact that did not go unnoticed when he was picked for the high court. And Anschutz has close ties to organizations involved in the litigation. He has funded Americans for Prosperity, the Koch group representing the plaintiffs in the case. Groups filing amicus briefs against the Chevron defense have also been supported by Anschutz, including the Mountain States Legal Foundation, the Pacific Legal Foundation, and the National Right to Work Legal Defense Foundation. It probably goes without saying that Anschutz has also written checks to Leo’s Federalist Society.
Gorsuch’s vote in the case seems in the bag. Court reform groups like Accountable.Us have called on the justice to recuse himself, a request Gorsuch will never grant. Unfortunately, although there is a federal law on the books, for the Supreme Court recusal issues are left to the justices themselves to decide. And the Thomas Court members appear blind to the instances where their impartiality is in question.