By Robert Barnes,
New Justice Neil M. Gorsuch was an active, aggressive and somewhat long-winded questioner in his debut Monday at the Supreme Court, making his presence known during a series of complicated cases about legal procedures.
Gorsuch waited barely 10 minutes into the first of three hour-long cases before kicking off what became a long chain of questions. There is no expectation at the high court that new justices are to be seen and not heard, but the 49-year-old rookie seemed to push the envelope a bit.
Gorsuch asked more questions at his first oral argument — 22 — than did any of his fellow justices at their first appearances, according to Adam Feldman, a scholar who studies all things empirical about the Supreme Court. Before Monday, Justice Sonia Sotomayor had been the leader with 15 questions.
And, according to Feldman’s count, Gorsuch was wordier than all of his colleagues during their first time out, save for Chief Justice John G. Roberts Jr. and Justice Elena Kagan, who had joined the court after representing the government there as its chief lawyer.
In short order, Gorsuch showed he could be polite and still deliver a jab reminiscent of the justice he replaced, the late Antonin Scalia.
At one point, Christopher Landau, a Washington lawyer representing a former federal worker trying to navigate a complicated law governing grievance procedures, said, “We’re not asking this court to break any new ground.”
“No, just to continue to make it up,” Gorsuch shot back with a grin, indicating he believed previous court decisions had strayed from the text of the law.
As Gorsuch first emerged from behind the court’s maroon velvet curtains with his colleagues, he seemed to pause for a moment to take in the scene. His silver hair looking recently trimmed, and he wore a dark red tie under his black robe.
He shared a laugh with his seatmate, Sotomayor, and sat ramrod straight in his high-backed chair all the way to Roberts’s left. He rarely stopped smiling.
At the start of the day’s proceedings, the chief justice welcomed Gorsuch, nominated by President Trump to fill the seat left vacant by Scalia’s death in February 2016. Senate Republicans had refused to hold hearings for President Barack Obama’s nominee for the seat, Judge Merrick Garland.
Gorsuch returns the court to its previous composition of five generally conservative Republican-nominated justices and four consistent liberals nominated by Democrats.
“Justice Gorsuch, we wish you a long and happy career in our common calling,” Roberts said.
Gorsuch responded: “Thank you very much, chief justice, and thank you to each of my new colleagues for the very warm welcome I’ve received this last week. I appreciate it greatly.”
Gorsuch skipped last week’s private conference, where justices consider which cases to accept and reject, so he could bone up on the cases the court is hearing this week and next, its last oral arguments of the current term, which ends in June.
The second case of the day, Town of Chester, N.Y., v. Laroe Estates, was another complicated matter involving when a development company can intervene in a lawsuit brought by a landowner against a local government.
Like a front-row law student, Gorsuch flaunted the details.
“That’s his complaint, page 122 of the Joint Appendix,” he told Washington lawyer Shay Dvoretzky, who represented Laroe. “Your client, page 162, wants damages for itself.”
Gorsuch was confident and seemed not the least bit self-conscious as he questioned attorneys. He stressed, as he had at his confirmation hearings, that the text of the law would matter more to him than whether it resulted in outcomes that might not be what Congress had intended.
“Wouldn’t it be a lot easier if we just followed the plain text of the statute?” he asked Brian H. Fletcher, the Justice Department lawyer representing the government in the civil service case Perry v. Merit Systems Protection Board. “What am I missing?”
His new colleagues partly provided the answer.
Justice Samuel A. Alito Jr. said the case was “unbelievably complicated” and drew laughter from the courtroom spectators when he speculated that the person who wrote the law must be “somebody who takes pleasure out of pulling the wings off flies.”
Alito added; “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.”
One lawyer Gorsuch listened to but did not question was the attorney representing the town of Chester, Neal K. Katyal, a former acting solicitor general in the Obama administration. Katyal, who has an active practice before the Supreme Court, testified on Gorsuch’s behalf at the judge’s Senate confirmation hearing and was frequently invoked by Gorsuch’s supporters because of a New York Times op-ed he wrote titled “Why Liberals Should Back Neil Gorsuch.”
Some were watching to see if Gorsuch might recuse himself; he had routinely done so as a member of the U.S. Court of Appeals for the 10th Circuit when his former law firm had a case there or a controversy involved someone he knew.
But in the appeals courts, another judge can take the place of a recused colleague. There can be no replacement at the Supreme Court. And justices routinely hear cases involving lawyers with whom they once worked or are friends. Katyal, for instance, was deputy solicitor general when Kagan ran the office under Obama.
Gorsuch at times seemed sensitive about asking so many questions on his first outing.
“I’m sorry for taking up so much time, I apologize,” he said. “My last question.”
But it wasn’t.