Supreme Court Justice Neil M. Gorsuch celebrated the Fourth of July by joining the holiday parade in the small Boulder County community of Niwot. Gorsuch "worked the parade like a senator, not a sitting Supreme Court justice," according to a reporter for the left-leaning news site Rewire.
As Colorado's second Supreme Court justice in history (after Byron R. White), Gorsuch was welcomed by most in the crowd as home boy made good, but dissent was heard. One spectator greeted Gorsuch by mocking his appointment to a seat that, by all historical practice, rightfully belonged to Merrick Garland. Martha McPherson's sign stated her opinion in all caps: "USURPER GORSUCH SUCH A SHAM."
Back in Washington, Gorsuch was also drawing attention as court watchers and advocates and experts across the ideological spectrum assessed the first three months of a high court career that could last 30 years. Advocates on the left and the right appeared to agree on one point: Gorsuch could be on the way to being more conservative than his lionized predecessor, Antonin Scalia.
The New York Times editorial board was still referring to Gorsuch's seat as "stolen" as conservatives chortled over the appointment. In an op-ed for The Wall Street Journal, the conservative legal academics John Yoo and Sai Prakash said that conservatives "hit the jackpot" with the Senate Republicans' gamble to block Garland's confirmation.
Yoo, the Berkeley law professor who wrote the infamous torture memo while with the Bush Justice Department, and Prakash, a U-Va. law professor, described Gorsuch as a "robust originalist," more like Clarence Thomas than the self-described "fainthearted originalist" Scalia. They saw him as part of a conservative bloc with Thomas and Samuel A. Alito Jr. that would "expose" the "directionless middle" occupied by the others in the Republican-appointed majority, Chief Justice John G. Roberts Jr. and associate justice Anthony M. Kennedy.
Gorsuch was confirmed to the life-tenured seat by a bitterly partisan 54-45 vote in the Senate, the fourth closest margin ever for a confirmed justice. The narrow vote caused Gorsuch no hesitation at all in staking out distinctively conservative positions on the bench or in his votes and opinions.
Gorsuch "hit the ground running," remarked Jonathan Adler, a conservative professor at Case Western Reserve Law School in Cleveland. Michael Gerhardt, a liberal law professor at the University of North Carolina in Chapel Hill, agreed. "He's probably off the mark faster than people might have anticipated," Gerhardt said.
In fact, Gorsuch was unusually active in his first day on the bench, with 22 questions in the first of three arguments on April 17, according to Adam Feldman, a postdoctoral fellow at Columbia Law School and creator of the blog Empirical SCOTUS. Gorsuch asked 12 questions in the next case, but slowed down somewhat in the rest of the April calendar, according to Feldman's count. Still, with 108 questions in 13 hour-long arguments, Gorsuch's average of eight questions per argument appears to be higher than similar counts for other newly-arrived justices.
In that very first argument, Gorsuch began to display what Gerhardt calls his "little bit of arrogance" — in that case toward the lawyers and later in his opinions toward his fellow justices. The issue in Perry v. Merit Systems Protection Board was how to apply a devilishly complicated federal statute on appeals in federal employee discipline cases. With the government's lawyer struggling, Gorsuch tartly interrupted at one point: "'Wouldn't it be a lot easier if we just followed the plain text of the statute?''
Gorsuch dissented from the eventual 7-2 decision in the case, convinced that Justice Ruth Bader Ginsburg had rewritten rather than scrupulously followed the law. In dissent, he lectured his Ivy League-graduate colleagues as though they were in a ninth-grade civics class. "If a statute needs repair," Gorsuch wrote, "there’s a constitutionally prescribed way to do it. It’s called legislation."
Gorsuch's vote helped produce conservative 5-4 decisions in two of the cases from the April calendar: a death penalty case from Texas, Davila v. Davis, and a class actions case, California Public Employee Retirement System v. ANZ Securities. He was among four dissenters in a second death penalty case, McWilliams v. Dunn, where Kennedy provided the fifth vote for the liberal bloc.
Apart from the votes, Gorsuch wrote or joined opinions to the right of the other conservatives. In Trinity Lutheran Church v. Comer, Gorsuch joined with Thomas in calling for allowing more government aid to church-affiliated schools than Roberts envisioned in his famous footnote 3. In Weaver v. Massachusetts, Gorsuch joined Thomas in a concurrence to question the recent precedent requiring jury selection in criminal trials to be open to the public. And he wrote separately in the unanimous decision in Maslenjak v. United States to complain that Justice Elena Kagan should not have offered advice on how to apply the decision in lower courts.
Gorsuch ended the term by going farther to the right. He joined with Thomas and Alito in voting to uphold President Trump's travel ban in its entirety. He wrote the dissenting opinion for the threesome objecting to the summary decision in Pavan v. Smith that married same-sex couples are entitled to have both parents' names listed on a child's birth certificate, just like opposite-sex couples. And, along with Thomas, he chided the majority for refusing in Peruta v. California to take up a Second Amendment challenge to California's limits on going armed outside the home.
All in all, Yoo and Prakash could not have been more pleased. Gorsuch, they wrote, " has lived up to supporters’ greatest hopes and critics’ worst fears." SCOTUSblog publisher Thomas Goldstein says Gorsuch "brings restored conservative energy" to the court and predicts, in the fact of the historic degree of unanimity during the past term, "historically high fractiousness" during the new term to open in October.
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