Aside from his presence, it was a very ordinary day at the high court. The justices released no high-profile decisions, added no new disputes to their docket, and heard three hours of oral arguments in dry, technical matters.
But the new justice was there, beaming as he and his colleagues took the bench, seemingly eager to prove he was ready for the job ― and every now and then reminding observers of the justice he replaced, Antonin Scalia. (President Donald Trump had, after all, promised to nominate someone just like the late justice.)
Gorsuch reportedly skipped a private conference among the justices last week so that he could be well prepared for this week’s arguments. He had to dig in since, aside from an explosive church-state case scheduled for Wednesday, the rest of the court’s April calendar is made up almost entirely of more legal disputes that most people won’t ever hear about.
Before they took the bench on Monday, the justices did one thing that was symbolic in its timing. They declined to hear the long-shot appeal of a New Mexico lawyer who sued Senate Majority Leader Mitch McConnell (R-Ky.) over his refusal to even grant a hearing to Merrick Garland — the judge who might have sat where Gorsuch now sits had the election turned out differently.
“Justice Gorsuch took no part in the consideration or decision of this petition,” noted the court’s unceremoniously brief order, issued at around 9:30 a.m. on Monday. The case, creative though it may have been, was always a tough sell, and it’s not surprising that the court chose not to hear it.
After Chief Justice John Roberts delivered a short welcome to Gorsuch, the court got down to business. If you’re facing the justices, he sits on the far right — the seat for the most junior member of the court. Justice Elena Kagan, who had been the most junior member since 2010, now sits on the far left. Gorsuch has inherited a host of duties from her, like opening doors and attending cafeteria committee meetings.
About 10 minutes into the first case, the new justice opened his mouth and asked his first question, which was both thoughtful and lengthy.
“Where in the statute is that provided?” Gorsuch asked (in the TL;dr version). The court was hearing a tricky dispute dealing with the rules that federal civil service workers must follow when suing over workplace harms. The justice suggested that the “plain language” of the law may compel a specific result.
During oral argument in a securities case that afternoon, Gorsuch brought up similar concerns.
“Why shouldn’t we follow the plain language and the traditional understanding of the term ‘action’?” he asked. “Congress could have used ‘claims,’ which is what you’re saying. It’s the same claims ... but it’s a different action.”
For a moment, it was almost as if Gorsuch was trying to follow in the footsteps of the late Justice Scalia, an avowed textualist.
The new justice also channeled Scalia in the earnestness of some of his exchanges. In the third case the court heard Monday, yet another hyper-technical dispute over civil procedure rules, Gorsuch engaged one of the lawyers in a back-and-forth that goes on for several pages in the oral argument transcript. When the lawyer wouldn’t give him a straight answer, the justice seemed to snap a little.
“I’m sorry for interrupting, counselor,” Gorsuch said. “If you would just answer my question, I would be grateful.” After the lawyer, Shay Dvoretzky, gave it his best try, Gorsuch shot back, “I’ll let you go.”
Overall, the rookie justice was poised, respectful and unafraid to leave a mark on his first day. By one empiricist’s count, he spoke more words than six other justices. (According to attorney blogger Adam Feldman, only Roberts and Kagan talked more.) He also seemed friendly with Justice Sonia Sotomayor, who sits directly to his right and with whom he’ll be spending lots of time on the bench ― at least until the next vacancy occurs.
Gorsuch’s big test this week will come during Wednesday’s oral argument in Trinity Lutheran Church of Columbia v. Comer, a Missouri case that could test the barrier between church and state. Maybe then, Gorsuch’s inner Scalia will come out in full force.