“How Badly Is Neil Gorsuch Annoying the Other Supreme Court Justices?” asks a New Yorker headline over a Jeffrey Toobin article. You won’t find an answer in the article. You won’t find any evidence that Gorsuch is annoying them at all. You won’t find it, either, in the New York Times column by Linda Greenhouse to which Toobin links, although you will find a lot of indignation from Greenhouse herself about Gorsuch’s alleged bumptiousness.
Toobin is determined to read Gorsuch in as tendentious a manner as possible. He writes,
Gorsuch also expressed ill-disguised contempt for Anthony Kennedy’s landmark opinion legalizing same-sex marriage in all fifty states. Earlier this year, the Court’s majority overturned an Arkansas ruling that the state could refuse to put the name of a birth mother’s same-sex spouse on their child’s birth certificate. Dissenting, 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.
I’d think better of Gorsuch if he had contempt for Kennedy’s opinion in Obergefell, which deserves it. But the quote shows no such thing. Three sentences earlier, Gorsuch had quoted the standard he was applying: A lower-court decision should be summarily reversed when “clearly in error.” Gorsuch was arguing that the decision didn’t contradict Obergefell, let alone clearly contradict it, and was therefore not “clearly in error.” His point was not that Obergefell is unclear; it was that the lower court was not twisting its meaning.
A new column by Toobin continues the misreading. Here Toobin’s claim is that Justice Ginsburg destroyed Justice Gorsuch from the bench during yesterday’s oral argument over redistricting. Gorsuch asked, in a supposedly patronizing way, where the Constitution justified the Supreme Court’s redrawing legislative-district lines, and Ginsburg retorted that the Court had been overturning district lines as unconstitutional since the early 1960s.
This is not a mic drop moment for two reasons. First, those early-1960s decisions were themselves criticized for not having plausible grounding in the Constitution. It’s one thing to say that they have been precedents so long that they’re now an unquestionable part of constitutional law. It’s another to say that we can’t ever go back to first principles when we’re thinking about expanding those precedents.
Second, it’s not even clear (if I may) from the exchange that Justice Gorsuch was saying what Ginsburg, Toobin, and like-minded commentators take him to have been saying. His question was, “Where exactly do we get authority to revise state legislative lines?” Perhaps what he had in mind is that policing political gerrymandering in the way the Supreme Court is currently being asked to do would involve much more extensive judicial involvement in line-drawing than its previous decisions. Insisting that districts have equal populations is a much less complicated affair than making sure that they not produce an “efficiency gap,” and the constitutional justification for doing the former, while contestable, is stronger.
Perhaps Gorsuch could have stated the point more precisely. But he was, after all, speaking off the cuff. And some of his listeners seem to be too caught up in their annoyance to hear him out.