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Neil Gorsuch Lays Down Some Early Markers

10 May 2017
The National Law Journal’s Supreme Court Brief

President Donald Trump “got what he was looking for” in his U.S. Supreme Court pick—Justice Neil Gorsuch.

“Justice Gorsuch comes as advertised: someone deeply committed to ruling by the text and the Constitution’s underpinnings, like federalism,” Mayer Brown’s Timothy Bishop, a veteran high court advocate, said.

Bishop and Mayer Brown senior associate Chad Clamage offered insight this week gleaned from the new justice’s participation in high court arguments on April 13. Although those arguments are not necessarily representative of Gorsuch’s approach to every case, Bishop said, “you can see in these arguments some themes that are worthwhile noting.”

Gorsuch put down his “marker” in his very first argument and is most active as a questioner, according to Bishop.

The casePerry v. Merit Systems Protection Board, asked the justices whether a board decision on jurisdictional grounds in a “mixed case”—involving civil service and discrimination claims—is reviewable in a district court or in the U.S. Court of Appeals for the Federal Circuit. The governing statute says civil service suits go to the Federal Circuit and discrimination suits go to the trial court.

The employee’s lawyer, Christopher Landau of Kirkland & Ellis, relied on a unanimous 2012 decision by Justice Elena Kagan. In that ruling, the court said mixed cases, decided on the merits, can be challenged in district courts. Although Gorsuch agreed with the policy that it is not good to split the claims, he focused on the language of the governing statute and said allowing civil service suits in district courts was nowhere to be found.

“It’s Gorsuch’s view and the view of textualists that the best way to get a clean rule is to follow the statute,” Bishop said. “He is saying, ‘I’m going to read the statutory language and don’t really care if it disagrees with a 9-0 decision of this court.’ It’s interesting he was willing to take on Justice Kagan’s opinion.”

Gorsuch’s focus on plain language, not policy consequences, also was evident in California Public Employees’ Retirement System v. ANZ Securities, which concerns the three-year time limitation for filing putative class action claims, Mayer Brown’s Clamage said.

An interesting style in the justice’s questioning emerged in Town of Chester v. Laroe Estates concerning the Article III standing of intervenors of right.

“He uses a technique there to a degree not used by many justices—getting a concession from counsel,” said Bishop, adding that agreeing to a concession is a way to lose a case. Jones Day’s Shay Dvoretzky would not bite, not even when Gorsuch somewhat testily said, “If you would just answer my question, I would be grateful.”

Dvoretzky’s reliance on precedent did not satisfy Gorsuch, who was “looking at first principles,” Bishop said.

In one of the justices’ highest-profile cases of the term, Trinity Lutheran Church v. Comer, Gorsuch used another technique—a rhetorical question—to signal his position to the other justices.

When Missouri’s counsel argued that a state grant program for refurbishing playgrounds was selective, not general, Gorsuch asked how he could tell the difference. When there is discrimination on the basis of religion, the justice said, there is no line drawing. “That’s what happened in this case, right?” Gorsuch said.

“It was a pretty clear signal how he will vote in this case,” Bishop said. “He was not playing his cards close to the vest at all.”

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Reprinted with permission from the May 10, 2017 edition of The National Law Journal © 2017 ALM Properties, Inc. All rights reserved. Further duplication without permission is prohibited.

Related Information

  • Related People
    Timothy S. Bishop
    T +1 312 701 7829
    Chad Clamage
    Associate
    T +1 312 701 8090
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