Judge Gorsuch seems to be making the rounds in the media in anticipation of his book release. Yesterday I wrote about his interview with the Wall Street Journal. Today, David French The New York Times I published the transcript of the NMG interview. Going back to one of my hobbies, when a publisher signs a book deal with a judge with a large advance, the publisher knows that the press will be willing to sit down for an interview at the Supreme Court. This is free press that cannot be bought. It can be bought with a substantial advance. So it is even more Put a hat on About the judges’ royalties. I’m rambling on.
French and Gorsuch discussed in detail the lessons learned from the COVID case. In fact, we need to look back on that period much more than we do now. Many of us (including our current companies) made terrible decisions. Our faith in the power of government and self-proclaimed “experts” was largely misplaced. And what has happened since the pandemic has not restored my faith. Chief Justice Roberts’ “best precedent” South Bay It wasn’t long ago. You have to imagine that distrust was lurking in the background. Loafer Bright.
I found the conversation about camaraderie most enlightening. I think it’s a term that many people use to mean something different. It’s well known that Justices Scalia and Ginsburg were close friends and often socialized together. They had camaraderie. But would RBG have convinced Scalia to change his mind, at least on a major case? Probably not. Does that mean they didn’t have camaraderie?
Justice Kagan has recently been pushing the latter concept of collegiality, which involves being open-minded and willing to persuade. I think this push is part of her effort to rally Justice Barrett’s votes at every opportunity. If there is anything in common with Joan Biskupic’s reporting, it is that Justice Kagan has overturned Justice Barrett in several cases. I have yet to see any indication that a conservative justice has overturned a liberal member of the court in order to get a conservative outcome. Overturning is not ambidextrous. It only works on the left.
I reject the notion that collegiality entails a willingness to reconsider one’s views. The role of a judge is always to seek the truth and to determine the best answer to a particular legal dispute by the best of his or her ability. And that process largely involves evaluating the arguments presented by counsel and deciding which side should prevail. Of course, judges on a multi-member court will lobby one another for this or that position, and it is important to be willing to listen if you want to maintain a relationship. But I don’t think collegiality requires more than listening. In fact, there is a problem with this kind of post-hoc lobbying that takes place after the briefs have been filed and the arguments have been concluded. Perhaps the parties have a clear objection to the post-hoc position that has been presented, but they have not had a chance to discuss it. The vote at the conference reflects an assessment of the actual case as presented. But the change in vote after the conference is invariably due to newly decided aspects of the case that the parties have not had a chance to address. The court can always order a rehearing and re-argument, but the pattern thus far has been to decide cases on grounds that are completely unappealing to the lower courts. Net Choice and Gather It comes to mind.
David French poses this question to Judge Gorsuch, and he answers indirectly.
French: Justice Kagan has recently made several comments on the issue of collegiality within the courts in the Ninth Circuit, most notably the friendship between Justice Ruth Bader Ginsburg and Justice Antonin Scalia. Also recently, Justice Sonia Sotomayor gave a speech She had great praise for Judge Clarence Thomas and the way he interacts with court staff.
But Justice Elena Kagan said something interesting. She said that the camaraderie that America should pursue is not – I paraphrase – “Are we going to the opera together?” but “Are we open to each other?” Are we open enough to each other? What is your temperature check for camaraderie on the court?
GoSearch: Well, David, you can’t drag me to the opera.
French: I didn’t expect that.
GoSearch: There’s a lot going on in that question.
French: huh.
GoSearch: I don’t know if it would be a good idea to talk about the court first.
French: Let’s talk about the courts first, and then about culture.
GoSearch: Absolutely. In terms of the court, I think it’s important that we’re friends and enjoy each other’s company. We have a wonderful restaurant upstairs. It’s a wonderful restaurant, but it’s government, and we bring our own lunch. And often you’ll see the Chief Justice with his brown bag and his peanut butter and jelly sandwich. Okay. Those moments are important. They’re human. But I also think camaraderie in a workplace environment means being able to work well together. And can you share some numbers that tell that story?
Gorsuch explains that the court decides many cases unanimously, and that he often votes on the “liberal” side of a case. And he says unexpected coalitions are evidence of “collaborative spirit.”
GoSearch: We decide 60, 70 of the most difficult cases in the country every year, where the lower courts disagree. It’s the only place where cases go to the Supreme Court. We just want federal law. Our primary job is to make federal law uniform across the country, and once the circuit courts are in agreement, there’s little reason for us to take on cases unless they’re very important.
So most of what we do is when the lower court judges disagree on the law. Magically, I think there are only about 60 or 70 cases in this country. You could argue a little more, a little less, but it’s not thousands. It’s a very small number.
There are nine of us, appointed by five different presidents over 30 years. We have very different views on how to approach issues of statutory interpretation, constitutional interpretation over political disagreements, or methodological disagreements. But we can reach unanimous decisions about 40 percent of the cases brought before us. I think it may have been higher this term. I don’t think it happens automatically.
I think it’s the result of a lot of hard work, I think. That’s proof of camaraderie. You know? That’s what we do and we’re good at it. People often say, “Well, what about 6-3?” Okay. Okay. But that’s about a third of our schedule. And it turns out it’s not always what you think. About half of the 6-3s this semester are not what you think they are.
Okay. Gorsuch doesn’t really answer the second part of Kagan’s question. The fact that the justices vote in an unusual way reflects the fact that all justices are heretics to some extent. They are not ideologues, contrary to what you may read. Trust me, if there were an actual MAGA court, things would look very different. But Gorsuch doesn’t even hint that it requires a willingness to persuade your colleagues. It’s the facts of the case and the arguments the lawyers make that determine the unusual lineup.
I would ask Judge Barrett the same question. I think she might see things differently.
French also asked about Justice Kagan’s ethics proposal. Gorsuch explains that the facts have changed since Kagan’s speech: President Biden wrote a nonsensical editorial and Senator Schumer introduced the nuclear bill.
French: Since we’re running out of time, I’d like to address a couple of other questions. First, Justice Kagan also raised an interesting idea about ethics. She said that the Supreme Court has a code of ethics that she appreciates, but she also talked about the possibility of enforcing it. Let me just read a quote. “If the Supreme Court were to appoint a committee of highly respected judges who have a reputation for fairness and a lot of experience, that would seem to me to be a good solution.”
And one of the reasons is that part of creating an outside judicial panel is to protect the courts and provide an outside voice that can not only rule on potentially valid claims but also refute invalid accusations. And she made it clear that she was only speaking for herself. What is your reaction to that notion?
GoSearch: David, since that talk, the world has come a long way, and this topic is now being discussed in depth in political circles. But for now, I don’t think it would be very useful for me to comment on this topic.
In retrospect, did Kagan still make her statement knowing what was going to happen next week? Or did Kagan know what was going to happen and made her statement to change the Overton window? We are dealing with a cunning, plugged-in operator here, so be skeptical. How does that play into camaraderie?
