In First Opinion, Gorsuch 'Too Cute by Half'?

      The Supreme Court's rookie justice Neil Gorsuch has written his first opinion since taking the bench and the reviews are mostly good. "A superb opinion," gushed legal writing expert Ross Guberman hours after Gorsuch handed down his opinion in a little noticed consumer protection case, Henson v. Santander Consumer USA [June 12]. But hold the applause. On close examination, the opinion is structurally flawed, legally simplistic, and unfortunate on policy grounds.

      News coverage emphasized the new justice's use of alliteration to open a close grammatical dissection of one sentence in a 40-year-old federal law. The federal Fair Debt Collection Practices Act was aimed, Gorsuch tells the reader in his opening paragraph, at such "wayward collection practices" as "disruptive dinnertime calls" and "downright deceit."

      Guberman, who formerly taught legal writing at Yale Law School and now provides paid writing instruction to law firms, courts, and others, gave Gorsuch the newly created 2017 Judicial Alliteration Award for this and a second alliterative phrasing later in the opinion. Steven Mazie, the American Supreme Court correspondent for the British newsmagazine The Economist, mimicked Gorsuch with a tweet. "Gorsuch goes gaga for alliteration in opening line of 1st #SCOTUS op," Mazie tweeted.,

      The National Law Journal's Tony Mauro interpreted Mazie's tweet in his write-up of Gorsuch's opinion as "warm praise." Not so, Mazie now says. "Too cute by half," he told me. Guberman had noted Gorsuch's "breezy" and "jocular" style when the nomination was pending in the Senate. But some detractors in Gorsuch's home state of Colorado are said to have viewed his stylistic flourishes with something like mild disapproval.

      Apart from that issue, Gorsuch departed more significantly in his debut opinion from the established format for Supreme Court majority opinions. Invariably in recent memory, majority opinions open with a short overview of the case followed by Roman numeral-marked sections. Gorsuch's opinion, quite short at barely 10 pages in length, has no such guideposts.

      Michael Gerhardt, an experienced court watcher as law professor at the University of North Carolina, says the use of numbered sections helps both the justices and the legal community. Without that structure, Gerhardt explains, "People would have to work a little harder to follow the reasoning and maybe count the votes." The structure also "makes it easier for justices to specify which sections they join or don't  join," he adds.

      Gorsuch's departure from the customary organization of Supreme Court decisions went unremarked on until a tweet by this writer last week. But a review of the initial majority opinions by Gorsuch's eight colleagues shows that all of them adopted the numbered-section format in their maiden opinions­ — even in decisions that were short and unanimous, just like Gorsuch's debut. (Credit Adam Feldman of Empirical SCOTUS, here, with listing and linking those opinions.)

      Among the current nine, Chief Justice John G. Roberts Jr. and the junior justice Elena Kagan appear to be competing for the title of "best writer" on the Court. In their initial opinions, however, Roberts and Kagan both played it straight: nothing at all breezy apart from Roberts's citation in Martin v. Franklin Capital Corp. (2005) of "no less an authority" than Chief Justice John Marshall. A quick reading of the initial opinions by the six others also finds nothing comparable to Gorsuch's maiden effort to add some writing flair in aid of accessibility.

      Gorsuch's opinion also confirms to some extent the confirmation-fight accusations from Democrats and progressive groups that he favors business interests over consumers or workers. The plaintiffs in the case had accused Santander of engaging in the same kinds of "wayward collection practices" that Congress had in mind when it passed the debt collector law in 1977..

      The specifics of their complaints are missing from Gorsuch's opinion. Instead, he examined in grammar-lesson style the question of whether Santander, which bought the plaintiffs' defaulted car loans from CitiBank's auto financing arm, met the statutory definition of "debt collector." The law's definition: anyone who "regularly collects or attempts to collect . . . debts owed or due . . . another." Santander, Gorsuch reasoned, was collecting debts for itself, not for "another."

      Among eight federal courts of appeals to consider the question, five had ruled that a debt purchaser such as Santander was indeed a "debt collector." In adopting the narrower reading of the law, Gorsuch followed the approach of his dissent in the infamous Frozen Truck Driver case. In that case, he narrowly read a federal trucker safety provision as inapplicable to the discharged driver's decision to leave his inoperable rig on the roadside and drive in subzero temperatures to a heated service station.

      As in that earlier case, Gorsuch turned a close question of statutory construction into a civics lesson, this time with eight other justices concurring. The advent of the debt purchasing industry was a changed circumstance since 1977, Gorsuch acknowledged. But he refused to consider whether Congress would have intended to include them as debt collectors under the law. "It is never our job to rewrite a constitutionally valid statutory text under the banner of speculation about what Congress might have done had it faced a question that . . . it never faced," he wrote.

      For conservatives, this kind of obtuseness counts as respect for the Constitution's separation of powers. But others may rightly ask whether the more faithful reading of arguably ambiguous statutory text would seek to apply the evident congressional intent that the law itself reflects.