Toobin: How Badly Is Neil Gorsuch Annoying the Other Supreme Court Justices?

clarence-thomas Sep 30, 2017

Jeffrey Toobin who works for the very fake CNN had an article in The New Yorker yesterday (article). He talks about the behavior and actions of Justice Gorsuch. Specifically, how his actions relate to the “norms of the court” whatever they are.

First, I want to say, I used to respect Mr. Toobin and Justice Ginsburg. That changed many years ago. My view of them does affect my reading of his articles. Edit: as an aside, I defended Justice Ginsburg’s comments less than 10 months ago.

Next, the title of the article. Really? Is that a real title? I acknowledge that it likely wasn’t written by Mr. Toobin, however, any article with a question mark is weak and likely meant to inflame rather than inform.

Mr. Toobin starts out talking about Virginia Thomas (Justice Thomas’ wife) and her political activities. He notes that those suddenly stopped. And, he hypothesizes with no real evidence that this is because the court tries to remain non-political. Here are some excerpts (bold added):

In 2009 and 2010, Virginia Thomas became an outspoken opponent of the new President, Barack Obama.

. . .

Then, shortly before the A.C.A. case came before the Justices, in 2012, something happened. Ginni Thomas stopped her public advocacy; indeed, she has virtually disappeared from public view in the past few years.

Why? Neither Thomas has ever addressed the issue publicly, but it’s possible to offer some informed speculation. The Justices, and especially Chief Justice John Roberts, are assiduous defenders of the Court’s reputation. As savvy denizens of Washington, D.C., they understand the political dimension of their work, but they are careful to avoid any taint of outside political activity that might raise questions about their ethics. This view is shared across the ideological spectrum at the Court, as the Justices believe, with some reason, that an attack on one of them could quickly expand into an attack on all.

. . .

The retreat of Ginni Thomas brings to mind the emergence of Justice Neil M. Gorsuch.

He cites Ginni Thomas as a way to introduce Justice Gorsuch. But, I really want to focus in on that highlighted quote. One thing that surprises me is that he went so far back to find an example of political behavior surrounding the Supreme Court Justices. He even used a Justice’s wife. Isn’t there another example? Maybe more recent? With a Justice herself? From Jeffrey Toobin at CNN:

Supreme Court justices, like everyone else, become more like themselves as they get older. That’s the real lesson of Ruth Bader Ginsburg’s recent series of partisan observations.

In a series of interviews over the past week, the 83-year-old Ginsburg let loose with several howitzers aimed at Donald Trump. Asked by a reporter from The Associated Press what would happen to the court if Trump could make nominations, she said, “I don’t want to think about that possibility, but if it should be, then everything is up for grabs.”

Note: that’s from July, 2016. And, it seems like a much more salient example. Perhaps Mr. Toobin forgot?

But, back to Gorsuch. Why is he so annoying?

Earlier this week, Gorsuch gave a speech before the Fund for American Studies, a conservative educational and advocacy group. The Justices do occasionally speak before groups with high political profiles. … What made Gorsuch’s appearance especially notable was that it took place at the Trump International Hotel in Washington, which is the focus of several pending cases that may well wind up before the Supreme Court.

I guess the problem is that he went to Trump International Hotel? Perhaps, it would have been better to decline the invitation because it was at a Trump Hotel? That way he seems more impartial, by purposefully avoiding anything with the President’s name.

Gorsuch’s Trump Hotel speech followed one he gave at the University of Louisville, where he was introduced by Mitch McConnell, the Senate Majority Leader, who was, more than anyone, responsible for blocking Obama’s nomination of Merrick Garland to the seat that Gorsuch now occupies.

That’s a long sentence. Why would this annoy justices?

Gorsuch’s speeches might appear less distasteful to his colleagues if he had made an otherwise more graceful début on the Court. As Linda Greenhouse observed in the Times the end of Gorsuch’s first term, he managed to violate the Court’s traditions as soon as he arrived. He dominated oral arguments, when new Justices are expected to hang back.

Ahh, okay, definitely it’s better to just let Justice Thomas run wild in oral arguments. (If you’re unaware Justice Thomas is notoriously quiet.)

Dissenting from a decision that involved the interpretation of federal laws, he wrote, “If a statute needs repair, there’s a constitutionally prescribed way to do it. It’s called legislation.”

Presumably the snark is the issue here. Maybe the context would help? From Justia:

If a statute needs repair, there’s a constitutionally prescribed way to do it. It’s called legislation. To be sure, the demands of bicameralism and presentment are real and the process can be protracted. But the difficulty of making new laws isn’t some bug in the constitutional design: it’s the point of the design, the better to preserve liberty. Besides, the law of unintended consequences being what it is, judicial tinkering with legislation is sure only to invite trouble.

Back to Mr. Toobin:

Gorsuch also expressed ill-disguised contempt for Anthony Kennedy’s landmark opinion legalizing same-sex marriage in all fifty states. … Gorsuch wrote, “Nothing in Obergefell spoke (let alone clearly) to the question.” That “let alone clearly” reflected a conservative consensus that Kennedy’s opinion was a confusing mess.

Mr. Toobin is putting a lot of words in Justice Gorsuch’s opinion. I was left curious what the question was. From the opinion itself (Justia), in context:

To be sure, Obergefell addressed the question whether a State must recognize same-sex marriages. But nothing in Obergefell spoke (let alone clearly) to the question whether §20–18–401 of the Arkansas Code, or a state supreme court decision upholding it, must go.

So, it was about whether Obergefell applied to the current case. I feel that Mr. Toobin’s article was more than a little bit disingenuous.

Anyway, that’s the list of why the justices are so annoyed with him. But, I guess they’re totally cool with Justice Ginsburg. Justice Ginsburg who skipped President Trump’s speech to congress (The Hill). Justice Ginsburg who called then candidate Trump a “faker” (CNN). Justice Ginsburg, who called her comments “ill-advised,” yet, just this week said that there’s “no doubt” sexism played a role in the 2016 election (Politico).

Two of those examples were after the CNN article Mr. Toobin penned. So, I want to end with a quote from the obviously prescient man himself:

But there is value in at least formal neutrality in these most partisan battles. Any smart lawyer — or smart citizen — can see that. So, in short order, will Ginsburg.