Gor­such stands out in sec­ond term at high court

The Washington Times Weekly - - Politics - BY ALEX SWOYER

The Supreme Court has com­pleted what ob­servers said was a rather drama-free year of oral ar­gu­ments — though one of Pres­i­dent Trump’s jus­tices did stand out.

It wasn’t Jus­tice Brett M. Ka­vanaugh, com­plet­ing his first term on the bench, but Jus­tice Neil M. Gor­such in his sec­ond full term, who an­a­lysts said has come into his own as a force­ful voice from the bench.

From chal­leng­ing prece­dent to prod­ding Congress to do its own work to set­tle dis­putes, Jus­tice Gor­such made waves from the far end of the left side of the dais.

In one high-pro­file case over a large World War I me­mo­rial cross set in a pub­lic park, he won­dered why re­li­gious lib­erty law bowed so deeply to those who take of­fense.

“We have to tol­er­ate one an­other,” he sug­gested.

Sit­ting next to Jus­tice Gor­such was Jus­tice So­nia So­tomayor, Pres­i­dent Barack Obama’s first pick for the high court, who also strength­ened her voice this year, be­com­ing a more vo­cal ad­vo­cate for His­pan­ics — she’s the only His­panic on the bench — and a thorn in the side of Trump ad­min­is­tra­tion lawyers.

Dur­ing oral ar­gu­ments over the Cen­sus Bureau’s quest to probe Amer­i­cans about their cit­i­zen­ship dur­ing the 2020 count, she said His­pan­ics were jus­ti­fied in wor­ry­ing about the Trump ad­min­is­tra­tion’s mo­tives.

“Are you sug­gest­ing they don’t have, whether it is ra­tio­nal or not, that they don’t have a le­git­i­mate fear?” she asked So­lic­i­tor Gen­eral Noel Fran­cisco.

Jus­tices Gor­such and So­tomayor also have be­come a play­ful duo. Dur­ing one oral ar­gu­ment, she reached over to pinch him, at­tempt­ing to demon­strate a par­tic­u­lar level of force in a case over when a rob­bery turns into a vi­o­lent felony.

SCOTUSBlog re­ported that Jus­tice Gor­such seemed be­mused and mildly alarmed, and the court­room au­di­ence laughed.

“It’s al­ways nice to see when jus­tices on dif­fer­ent sides can like each other,” said Curt Levey, pres­i­dent of the Com­mit­tee for Jus­tice and a prom­i­nent court watcher.

Mr. Levey said for GOP-ap­pointed jus­tices, they can range from mod­er­ate for­mer Jus­tice An­thony M. Kennedy, whom Jus­tice Ka­vanaugh re­placed, to Jus­tice Clarence Thomas, the quiet con­ser­va­tive. Mr. Levey said Jus­tice Gor­such is plant­ing him­self on the Thomas side — but more vo­cal.

“This term I was look­ing for more and I think I got it. If Thomas spoke, we would prob­a­bly get equally bold and out-of-the-box think­ing,” Mr. Levey said.

For his part, Jus­tice Thomas broke his fa­mous si­lence from the bench, ask­ing his first ques­tion since 2016 and just his sec­ond since 2006.

In a case deal­ing with a black man ap­peal­ing his mur­der con­vic­tion over claims the state had blocked black ju­rors, Jus­tice Thomas, the only black mem­ber of the court, won­dered whether the de­fense had struck any white ju­rors.

It turned out the de­fense had struck white ju­rors — but the con­vict’s lawyer told Jus­tice Thomas that didn’t mat­ter, in­sist­ing the case be­fore the high court was only about the pros­e­cu­tion’s be­hav­ior.

Ilya Somin, a law pro­fes­sor at George Ma­son Univer­sity, said cases in­volv­ing racial is­sues can en­tice Jus­tice Thomas into par­tic­i­pa­tion.

“While it is al­ways sur­pris­ing when he asks a ques­tion be­cause it hap­pens so rarely, it’s a lit­tle less sur­pris­ing he asked one in this con­text,” Mr. Somin added.

Adam Feldman, who runs the blog Em­pir­i­cal SCOTUS, crunched the num­bers on this year’s oral ar­gu­ments and wrote that Jus­tice So­tomayor was the first jus­tice to ask a ques­tion in oral ar­gu­ment more of­ten than any of the oth­ers. She also was the most fre­quent sec­ond-speak­ing jus­tice.

Mr. Feldman wrote that the lib­eral wing of the court has be­come more ac­tive in try­ing to shape the oral ar­gu­ment, per­haps hop­ing to shape the di­rec­tion of the out­come.

For ex­am­ple, Jus­tice Ruth Bader Gins­burg, who missed weeks of oral ar­gu­ments while re­cov­er­ing from surgery, was back in the thick of things, jump­ing right into the ques­tion­ing in an em­ploy­ment dis­crim­i­na­tion case in April.

“Shows some par­tic­u­lar in­ter­est,” Mr. Feldman said.


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