Justice Gorsuch weighs in on legal questions, meatball subs
By Jessica Gresko
Associated Press
WASHINGTON (AP) - Neil Gorsuch became the Supreme Court's newest member a year ago this Tuesday. President Donald Trump's pick for the high court, its 113th justice, has now heard more than 60 cases on issues including gerrymandering, fees paid to unions and the privacy of certain cellphone records.
It's generally unwise to predict anything about a justice so early into his or her tenure, with few opinions written and votes in a small number of cases. But so far Gorsuch has been what Republicans believed and hoped he would be - a reliably conservative vote.
Beyond that, the public has gotten a glimpse of what Gorsuch may be like as a justice, from chances to see him spar with lawyers in court arguments, speak to groups and even tackle his first issue on the cafeteria committee.
A look at what observers have seen from Gorsuch inside and outside the court in the past year:
THE WRITER
Frequent readers of Gorsuch's writing as a justice say his style is designed to attract attention and reach an audience beyond law professors and experts. So far, he's written three opinions, two separate opinions where he agreed with the majority's result and several dissents.
Earlier this year Gorsuch began a dissent by citing English writer G.K. Chesterton, an opening that drew mixed reviews. He started an opinion involving water rights with a humorous quote attributed to actor Will Rogers, who is said to have called the Rio Grande "the only river I saw that needed irrigation."
In some cases, Gorsuch has been criticized for seemingly talking down to readers or to his colleagues on the opposite side of an issue, but he's also won praise for being clear and engaging. Opinion writing isn't new for Gorsuch, who spent a decade as a federal appeals court judge before joining the Supreme Court. Now, however, it comes with higher stakes and a broader audience.
Court observers caution against reading too much into Gorsuch's first Supreme Court writings. "One year is not that much of a sample size on a justice," said Dan Epps, who co-hosts the First Mondays podcast about the court.
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THE LIGHTNING ROD
Gorsuch has been the target of criticism from the left over the past year, perhaps in part because of the political atmosphere in which he was confirmed. After Justice Antonin Scalia's death in 2016, Senate Republicans refused to hold a hearing on President Barack Obama's choice to replace the conservative jurist and left Scalia's seat open for more than a year until voters chose a new president.
Some critics have noted that Gorsuch's few public appearances since becoming a justice have included speaking at events linked to people who helped him get his new job. His decision to speak at an event at Trump's Washington hotel in September drew particular ire.
While liberals had hoped that Obama's nominee, Merrick Garland, would fill Scalia's seat, Gorsuch's selection preserved the court's conservative bent. Since joining the court, Gorsuch has joined Justice Clarence Thomas as one of conservatives' favorite justices, fully agreeing with Thomas in 14 of the 17 cases in which the court has not been unanimous, according to statistics compiled in part by the website SCOTUSblog. That's in comparison to just eight of those cases where Gorsuch has fully agreed with more moderate conservative Justice Anthony Kennedy.
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THE ORAL ARGUMENT QUESTIONER
Scalia was from the outset of his time as a justice an aggressive questioner during arguments. Gorsuch is less dominant. So far this term he has asked an average of 16 questions per argument, the third highest average among the nine justices, according to SCOTUSblog. He's rarely been the first justice with a question. And during arguments in February in a high-profile labor union case in which he holds the decisive vote, he said nothing at all.
Gorsuch has made the courtroom audience laugh 11 times this term. That puts him in fifth place for laugh-getting by a justice, according to Boston University law professor Jay Wexler. One such moment came during arguments in a case about a baker who cited his religious beliefs in refusing to make a wedding cake for a gay couple. Gorsuch noted he's never had "a wedding cake that I would say tastes great."
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THE JUNIOR JUSTICE
Gorsuch has some special roles as the court's newest member. Those include taking notes and speaking last at the justices' private conferences as well as opening the door when anyone knocks. He also serves on the court's cafeteria committee.
Gorsuch has said his first cafeteria committee act was to help address a problem with the meatball subs. "The marinara sauce had been somehow replaced by shrimp cocktail sauce," he said. "We got that fixed."
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THE OUTDOORSMAN
Gorsuch gave up ready access to skiing, a favorite activity, when he left his home in Colorado for the nation's capital. His outdoor activities these days include taking regular, early morning bike rides, he has said, and he has been spotted leaving the court on two wheels. Inside his office he has some wildlife: the head of an elk, a welcome gift of sorts.
Asked during an appearance at Harvard what he'd be doing if he weren't a lawyer, he said the question stopped him before the answer became obvious.
"I envy fly fishing guides and ski instructors," he said. "And better yet somebody who does one in the summer and the other in the winter."
Diabetes, decisions and justice math
By Jessica Gresko and Mark Sherman
Associated Press
WASHINGTON (AP) — Visitors attending Supreme Court arguments surrender their electronics on entering the courtroom. So if something rings, chimes or buzzes, it’s likely the device’s owner is dressed in a black robe.
Last year, a justice’s cellphone went off. But last month, when four electronic pings sounded during an argument, the device was different. It belonged to Justice Sonia Sotomayor and was alerting the justice, who is diabetic, that her blood sugar was urgently low.
The 63-year-old justice has had diabetes since childhood, but the sound was the first public notice that she was using a continuous glucose monitor.
Sotomayor’s use of the device doesn’t indicate a change in her health, experts told The Associated Press, but it does show her embracing a technology that has become more popular with Type 1 diabetics.
In 2013, when Sotomayor did an interview with the American Diabetes Association’s “Diabetes Forecast,” the magazine reported she was not using one. But in recent years the devices, which use sensors inserted under the skin, have become more accurate, said Cleveland Clinic endocrinologist Kevin Pantalone.
Monitors give users continuous information about glucose levels, rather than the snapshot they get from testing their blood with a finger prick. Information from the sensor gets sent every few minutes to a device where a user can see it charted. Most devices sound alarms at low and high glucose levels. Some monitors work with an insulin pump, which continuously delivers insulin.
It’s not clear when Sotomayor began using the technology. She declined comment through a court spokeswoman. But the dinging during arguments on March 21 followed an incident in January where emergency medical personnel treated her at home for symptoms of low blood sugar.
Aaron Kowalski, an expert in diabetes technologies, said an event like that can prompt a person to try a monitor, but even people using the devices can experience low blood sugar that might result in an emergency call. Kowalski, who leads the research and advocacy efforts of JDRF, the Type 1 diabetes research organization, said about 15 percent to 20 percent of Type 1 diabetics now use such a device.
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Some Supreme Court math: It takes at least six of the nine justices for the court to consider a case.
When financial conflicts or family relations require more than three justices to step aside, federal law leaves the remaining justices just one option: They affirm the lower court’s decision, without setting a precedent on the issue at hand. That’s also what happens when the court is evenly divided.
But an unusual statement from two justices last week suggests the court is looking for an end run around the law in one case.
Justices Anthony Kennedy and Clarence Thomas said the court would put off acting on a long-pending appeal resulting from the Tribune Co. bankruptcy and strongly hinted that lower federal courts in New York that previously ruled in the case should take new action.
As many as seven of the nine justices might have a conflict in the case, according to Fix the Court, a group that advocates for greater transparency at the Supreme Court. Seven justices appear to hold investments in mutual funds that were on the winning side in the lower courts, it said.
The explanation for the statement is that the high court recently ruled in a separate bankruptcy case that raised an issue that’s also part of the Tribune case. The unanimous court, resolving a split between appeals courts, said in effect that the New York-based 2nd U.S. Circuit Court of Appeals got it wrong.
If the justices were now to turn around and affirm the 2nd Circuit’s ruling in the Tribune case, they would be blessing a decision they already had decided was incorrect.
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One of the animals that appear in the architecture of the Supreme Court is the tortoise, symbolizing that the court moves slowly but surely. This year, the justices are moving a little more slowly than usual. They have released 18 opinions at a point in the year when the number is generally above 20.
So far, two just decisions split the liberal and conservative justices 5-4, with Justice Anthony Kennedy breaking the tie. Conservatives won both times.
In one case, the justices said that car dealerships’ service advisers are not eligible for overtime pay. They held in the other that prisoners who win civil rights lawsuits against their jailers will have to give more of their money to their lawyers.
There will almost certainly be more 5-4 splits over the next three months before the court starts its summer break. It’s not unusual for the first decisions to reflect consensus, if not unanimity. The easier it is to resolve a case, without the back and forth that dueling opinions can occasion, the faster the court can issue a decision.
