There has been much commentary in recent months about the aggressive start Justice Neil Gorsuch has made since being sworn in on April 10, 2017. But how does the early stage of his tenure compare to those of his most recent predecessors, Justices Elena Kagan and Sonia Sotomayor?
There is no established test to make this comparison, no formula that produces an easy answer. Examining how each of these newcomers performed specific roles early on at the court may shed some light, however, even if the results are not conclusive.
First, let us look at some basic details. Gorsuch was sworn in just before the court sat for its final two-week session of oral arguments in April 2017; thus he participated in only 13 decisions in his first term. Justice Elena Kagan was sworn in on August 7, 2010; although she was on the court for the entire term, she recused herself in about 35 percent of the decisions because of her prior role as solicitor general, participating in 47 decided cases. Justice Sonia Sotomayor was sworn in on August 8, 2009. Like Kagan, she was on the bench for the entire term, and she participated in most of the decisions in her first year.
Justice Neil Gorsuch (Art Lien)
Justices often say it takes five years to really learn the job, but they begin performing their full duties immediately when the court is in session, and so we can compare their actions.
To begin, there is participation in oral arguments. Virtually all justices ask questions of the lawyers arguing before them, with the exception of Justice Clarence Thomas, who almost never does. By custom, new justices traditionally may be slightly less active at oral argument while they get the hang of the process – how to fit their queries in among the fast-paced questions of their colleagues, when to interrupt the lawyers or other justices, how much follow-up to pursue.
Among Gorsuch, Kagan and Sotomayor, none was slow entering the oral argument fray, but Gorsuch was somewhat more aggressive in his tone than the other two. In his very first argument on April 17, 2017, in Perry v. Merit Systems Protection Board, Gorsuch asked 30 percent of the questions posed to the lawyers, according to statistics compiled by SCOTUSblog. He engaged in several question-and-answer exchanges that spanned several pages in the Supreme Court’s transcript.
In his second argument on the same day, Town of Chester v. Laroe Estates, Gorsuch asked no questions of Neal Katyal, the lawyer for the petitioner, but at one point remonstrated with Shay Dvoretsky, who was representing the respondents, “I’m sorry for interrupting, counselor. If you would just answer my question, I would be grateful.” Then, apparently frustrated by the attempted answer, Gorsuch said, “I’ll let you go.”
In her first oral argument on October 4, 2010, Ransom v. FIA Card Services, Kagan asked questions of all three lawyers in the case, but in a briefer, less aggressive style. She questioned both lawyers in her second argument, Snyder v. Phelps, on October 6, but again in a more direct, terser form.
Sotomayor was extremely active in her first argument, Maryland v. Shatzer, on October 5, 2009. She suggested to then-Maryland Attorney General Douglas Gansler at one point that he had jumped to “a different part of your argument.” She challenged the argument of Celia Davis, the public defender representing the respondent, saying, “Can I ask something. What does that have to do with the hypothetical Justice Alito gave you[?]”
For comparison, if one counts the number of times a justice’s name appears in the oral-argument transcript, Gorsuch spoke 47 times in his first argument, Kagan 10 times and Sotomayor 36 times.
Participation in oral argument is not the only way to look at the activities of new justices, of course. Their written work product can be even more telling, especially writing that is more discretionary than assigned majority opinions.
In looking at how the three justices extended themselves in their own writing, Gorsuch emerges as clearly the most aggressive by any measure.
In his short time on the bench from April to the end of June, 2017, Gorsuch only wrote one majority opinion for the court. But in that same period, he wrote more separate opinions than Kagan or Chief Justice John Roberts or Justice Anthony Kennedy did for that entire term, from October 2016 to June 2017. Gorsuch penned two concurring opinions and two dissenting opinions, four separate writings in all. Kagan had only one dissenting opinion, Kennedy two concurrences and Roberts two dissents.
In their own first terms on the court, Kagan and Sotomayor differed from each other as well as from Gorsuch in their records. Sotomayor wrote eight majority opinions in the term that ran from October 2009 to June 2010, and she also had two concurrences and three dissents. Kagan wrote seven majority opinions and three dissents in her first term, from October 2010 to June 2011. Comparing these numbers, Gorsuch produced four separate opinions in his first three months, Kagan three separate opinions in her first nine months and Sotomayor seven separate opinions in her first nine months.
Gorsuch also leads the field in other separate writings. In their first terms, neither Kagan nor Sotomayor wrote separately on the court’s per curiam opinions. These are unsigned opinions written for the court, often decided on the basis of the petition and brief in opposition without full briefing and oral argument. It is not unusual for one or more justices to dissent from a per curiam decision and to express separate views.
While neither Kagan nor Sotomayor were so moved in their first terms, Gorsuch wrote one such dissent on June 26, 2017, in Pavan v. Smith. Joined by Justices Thomas and Samuel Alito, Gorsuch objected to the majority’s summarily striking down an Arkansas law that required the names of both mothers and fathers on birth certificates but not the names of both parents in same-sex marriages. The majority wrote that the issue had been largely resolved by Obergefell v. Hodges, the 2015 decision finding a constitutional right for same-sex couples to marry. Gorsuch insisted that Obergefell did not address the birth-certificate issue raised by the Arkansas law. And he took an additional swipe at the author of Obergefell, Kennedy, for whom Gorsuch was once a law clerk, remarking that nothing in the ruling addresses the issue at all, “let alone clearly.”
Kagan and Sotomayor also refrained in their first terms from writing opinions dissenting from or agreeing with the court’s refusal to hear a case. These are typically referred to as opinions dissenting from the denial of a petition for a writ of certiorari. Sometimes when a justice writes such a dissent, another member of the court may write an opinion explaining why he or she agrees with the denial. After her first year, Sotomayor became an active user of this type of dissent, but she seemed to bide her time in her first term, perhaps learning the ways of the institution.
Not so with Gorsuch. On the last day of the term on June 26, 2017, he issued three separate opinions. In one, Hicks v. United States, Gorsuch defended the court’s decision to send a case back to the U.S. Court of Appeals for the 5th Circuit, taking issue with a dissent by Roberts. There was no clear need for Gorsuch to express this view, because the case was headed back to the appeals court with or without the explanation, but he apparently felt compelled to explain his own thinking.
On the same day, Gorsuch dissented from a denial of certiorari in Mathis v. Shulkin, a case involving the presumption of medical expertise for U.S. Department of Veterans Affairs medical examiners. Gorsuch said the court should resolve the challenge to the presumption, which may not be supported by law. And Gorsuch, writing for himself and Thomas, suggested that at some time the court should rule on a takings land-use issue raised in Bay Point Properties v. Mississippi Transportation Commisssion which the justices declined to review.
In all of these separate writings, Gorsuch made clear that he had no intention of hanging back to observe the ways of his more senior colleagues. Instead, to a greater extent than Kagan and Sotomayor, Gorsuch jumped in with both feet and made his presence known.
This post has been corrected to reflect the fact that Justice Sonia Sotomayor also participated in the reargument of Citizens United v. Federal Election Commission on September 9, 2009, the first case of her first term, in which she spoke four times.
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