Gorsuch takes spot on high court’s ‘ hot bench’
New Supreme Court justice is engaged in hearing three cases
The Supreme Court had a full bench at oral arguments Monday for the first time since Jan. 20, 2016, as newly confirmed Justice Neil Gorsuch took his seat on the far right side — literally, if not figuratively. Within minutes, he showed that he fit right in.
Gorsuch played an active role in questioning the seven lawyers who argued three rather mundane cases — the sort that come before the justices regularly but get little attention, and for good reason. Who can sue? Which courts have jurisdiction? How do equitable tolling and estoppel apply to a statute of repose?
While some of the issues involved were “unbelievably complicated,” in the view of Justice Samuel Alito, Gorsuch interrupted the litigators as justices have done since the late Justice Antonin Scalia, who Gorsuch succeeded, created what has come to be known as a “hot bench” three decades ago.
And it didn’t take long for the 49- yearold Coloradan, nominated by President Trump in January and confirmed by the Senate earlier this month, to display the strict interpretation of laws and narrow definition of words that defined his 10 years on the U. S. Court of Appeals for the 10th Circuit, winning accolades from conservatives.
“Where in the statute is that provided?” he asked Christopher Laudau, the lawyer representing a former Census Bureau worker in an employment discrimination lawsuit against the federal Merit Systems Protection Board, at the 10- minute mark of the first oral argument.
Later, when Landau said, “We’re not asking this court to break any new ground,” Gorsuch broke in — as all the justices except Clarence Thomas are prone to do. “No, just to continue to make it up,” he said.
Gorsuch’s comfort level with the argument over whether civil service and discrimination laws belong in district or appellate courts might have surprised some of his colleagues, who clearly were bothered by the issue’s complexity. At one point, when a lawyer wasn’t sure what part of Section 7703 of the Civil Service Reform Act deals with standards of review, the transcript records Gorsuch’s succinct answer: “( c).”
“The one thing about this case that seems perfectly clear to me is that nobody who is not a lawyer, and no ordinary lawyer, could read these statutes and figure out what they are supposed to do,” Alito said. “Who wrote this statute? Somebody who takes pleasure pulling the wings off flies?”
Gorsuch sat for three cases, and questioned five of the seven lawyers. He did not engage with former acting solicitor general Neal Katyal, one of the lawyers in the second case, who had served as a character witness for Gorsuch at his confirmation hearing lastmonth.
In that case, which dealt with who has standing to file a lawsuit, the focus was on Rule 24( a)( 2) of the Federal Rules of Civil Procedure. Gorsuch used the occasion to bring up the “doctrine of constitutional avoidance,” which dictates that rulings should not be based on the Constitution whenever possible.
And in the third case, which dealt with the rights of class action lawsuit members who opt out and file separate lawsuits, Gorsuch showed his devotion to plain language, asserting that the legal term “action” commonly refers to a lawsuit, not a claim, and that the phrase “in no event” is not ambiguous.
Gorsuch also displayed a trait that his mentor, Scalia, frequently kept hidden: politeness.
“I’m sorry for taking up so much time. I apologize,” he said after his first lengthy series of questions. And later: “I’m sorry for interrupting, counselor. If you would just answer my question, I would be grateful.”