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Gorsuch's Style Could Shift Supreme Court's Dynamic
DOW JONES & COMPANY, INC. 12:21 PM ET 2/6/2017
WASHINGTON -- Scrutiny of Supreme Court nominee Neil Gorsuch is focusing heavily on his judicial rulings and legal views, but there is another issue that will be almost as important should he reach the high court: how he fits in on a bench where personality and style can have a significant impact on decisions.

If confirmed, Judge Gorsuch would replace the late Justice Antonin Scalia, a man he admired and whose influence often came more from fiery dissents than consensus-building. The conservative giant could have a sharp tongue with colleagues, such as in the 2015 case that legalized gay marriage when he wrote that he "would hide my head in a bag" before he ever joined a flowery opinion like the one written by Justice Anthony Kennedy.

Justice Scalia also was an occasional critic of fellow conservative Chief Justice John Roberts's efforts to prod the court toward narrower rulings that attract a broader coalition of justices, preferring to sit on the periphery rather than bend on principles important to him.

While Judge Gorsuch has some similarities to Justice Scalia, the new nominee is sure to bring a different dynamic.

People who know Judge Gorsuch, who currently serves on the Denver-based 10th U.S. Circuit Court of Appeals, say he is unfailingly respectful and, as his former law clerk Katherine Yarger put it, "extraordinarily careful with his word choice, tone and his approach when communicating with other judges."

"It's an approach that will serve him well," said Ms. Yarger, who later clerked for Justice Clarence Thomas and now practices law at Gibson, Dunn & Crutcher LLP.

"The style could not be more different than Nino's," said Robert George, a professor of jurisprudence at Princeton University, using Justice Scalia's nickname. Judge Gorsuch "doesn't behave like he's a knight in combat or a boxer in the ring," said Mr. George, a friend of the judge's since they met at Oxford University more than a decade ago.

Still, "he's not a backslapper, he's not a deal maker. This is not going to be William Brennan," Mr. George said, referring to a former justice legendary for building consensus. "He's not going to cultivate his fellow justices with a view to winning them over to anything any more than Nino did."

While early indications are that Judge Gorsuch wouldn't be forging a centrist coalition on the court, his commitment to collegiality and his attentiveness to the judiciary's reputation raise intriguing questions for court watchers: Will he gravitate toward the more diplomatic chief justice, picking and choosing his moments while occasionally finding common ground with liberals in difficult cases? Or will he assume the more confrontational mantle of the Scalia camp, albeit with a smile?

Which direction Judge Gorsuch chooses could determine Chief Justice Roberts's success in navigating the court through tricky, divisive cases, as well as how the public views the court, particularly after the long and bitter political fight over who would fill the court's current vacancy.

Justice Scalia did build close personal relationships on the court -- most famously with Justice Ruth Bader Ginsburg, whose liberal views clashed with his own -- but his verbal jousting could create raw feelings (he called one majority opinion "interpretive jiggery-pokery"). And he could be harder than anyone on Justice Kennedy, a moderate conservative who sometimes sides with the court's liberal wing.

Justice Kennedy, by contrast, has been a mentor to Judge Gorsuch, who clerked for him during the Supreme Court's 1993-94 term. Judge Gorsuch would be the first former clerk to sit on the Supreme Court with his ex-boss, raising novel questions about which man would be more influential on the other, especially since the nominee's writings reflect a deeper conservatism than Justice Kennedy's.

Clerkships are a life-changing experience that can produce enduring bonds, said Adam Charnes, a lawyer at Kilpatrick Townsend & Stockton LLP who clerked for Justice Kennedy the year before Judge Gorsuch did. "You feel a great deal of gratitude and respect," he said. "It has to be hard to put that aside when you're a peer."

Perhaps an even bigger question is whether Judge Gorsuch would become a regular ally of Chief Justice Roberts. Both have spoken of the importance of judicial restraint and expressed concern about the judiciary being viewed as a political body instead of a neutral arbiter, a view that can be countered when judges across the ideological spectrum find common ground.

The chief justice's stewardship could be especially important during the Trump administration if, as expected, a series of cases challenging the president's agenda make their way to the court. If the president overreaches, the legal records of Chief Justice Roberts and Judge Gorsuch suggest they could form bonds to limit executive encroachment upon the constitutional powers of the legislative and judicial branches.

Nevertheless, there is reason to believe the two men may have differences in terms of legal theory and strategic pragmatism.

While the chief justice maintains a conservative voting record on the court and has led some bold conservative decisions, he has held his fire on other occasions. And he isn't a champion of originalism, the method of interpreting legal texts based on their perceived original meaning, an approach favored by Justices Scalia and Clarence Thomas -- and Judge Gorsuch.

Chief Justice Roberts famously parted company with conservative justices in upholding the Affordable Care Act's mandate that individuals carry health insurance or pay a penalty. In that same ruling, liberal Justices Stephen Breyer and Elena Kagan joined with the chief in invalidating the terms of the ACA's expansion of Medicaid, a big win for states' rights and a sign that the chief's bridge-building can occasionally win over liberals to more conservative outcomes.

Through a decade on the 10th Circuit, Judge Gorsuch has been a prolific writer of concurring and separate opinions, and some reflect a belief that legal principles shouldn't take a back seat to compromise.

"He has written some opinions that aren't of a go-along-to-get-along nature," said William M. Jay, an appellate lawyer at Goodwin Procter LLP.

Leonard Leo, who advised President Trump on the court nomination, said these opinions are "a glimpse of the extent to which he believes you have to be independent and free-spirited in situations where your colleagues might not necessarily agree with you."

But it is too soon to say where Judge Gorsuch will fall along the spectrum with other conservative justices, said Mr. Leo, who is on leave from his executive position at the Federalist Society, an influential conservative lawyers' network.

"I don't know, and at the end of the day I don't think even he knows" how Judge Gorsuch would fit in, given the unique dynamic on the nine-member Supreme Court, he said. Judge Gorsuch "has certain fundamental principles that he will continue to apply, but how that works when you're sitting there with the same people every day, it's hard to say."

Write to Brent Kendall at [e-mail] and Jess Bravin at [e-mail]


(END) Dow Jones Newswires
02-06-171221ET
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