« SCOTUS OT16 Symposium: The Future of Personal Jurisdiction | Main | Libertarians' self-defeating attacks on inclusionary zoning »

Sunday, July 02, 2017

SCOTUS Symposium: The Gorsuch Court (Updated)

Eric Segall reflects on the passing of the moment to instantiate his proposal for an evenly partisan eight-person Supreme Court, which died* with the arrival of Justice Gorsuch. Eric writes that many of the post-Term analyses have described it as a quiet Term, marked by consensus and an absence of late-Term drama.

[*] I suppose the dream remains alive if the next retirement were Justice Kennedy or Justice Thomas.

[Update: New reports are that Kennedy has hired only one clerk for OT 2018 and has told candidates he may not hire more because he may retire (retired Justices have one clerk). That vacancy would come four months before the mid-Term elections in which Democrats hope to retake the Senate. Of course, the chances that Senate Republicans unilaterally disarm in that situation are even less than they were prior to the Gorsuch nomination.]

But that narrative is accurate only until the April sitting, when Gorsuch took his seat for arguments. One could feel a palpable change in the Court; it reflected in arguments, with his dominant and sharp questioning, and in his seven separate opinions. All this offers clear indications that he is pushing his way to the front as a voice on the Court, seniority be damned, and that he is less interested in consensus and compromise than other members of the Court. (Some have suggested that this split with the conservatives more interested in compromise--the Chief and Kennedy--explains the odd result and per curiam opinion in the travel ban case).

Eric argues that the change we have witnessed since April reflects another point in favor of his proposal: "[W]hen five Justices share a common ideology, whether left, right or center, the temptation to impose that ideology is too great for mere mortals to resist." Three months in, and we already are seeing that point.

Posted by Howard Wasserman on July 2, 2017 at 12:31 PM in 2018 End of Term, Howard Wasserman | Permalink


I think that depends a great deal on the almost inevitable next appointment.

Posted by: Paul Horwitz | Jul 3, 2017 8:36:37 AM

I think that depends a great deal on the almost inevitable next appointment.

Posted by: Paul Horwitz | Jul 3, 2017 8:36:34 AM

Might Gorsuch's aggressive conservatism nudge Roberts toward the center? I am asking -- not suggesting -- and would welcome thoughts from folks who follow SCOTUS personalities more closely than I do.

Posted by: Rick Bales | Jul 2, 2017 9:13:19 PM

Not that Prof. Segall needs me to defend him, but you did miss it. He began making these arguments shortly after Justice Scalia died, before Merrick Garland was nominated, and he continued making them through the election season.

Posted by: Howard Wasserman | Jul 2, 2017 8:22:10 PM

I must have missed Prof. Segall's similar argument being made when Judge Garland was nominated. As long as Supreme Court justices of varying views use their position to so frequently find laws to be unconstitutional, nasty trench warfare over the appointment of every new Justice will be inevitable.

Posted by: PaulB | Jul 2, 2017 6:03:03 PM

I looked at the 18 opinions on SCOTUS' latest slip opinions webpage that Gorsuch participated in. In all 18, Thomas and Gorsuch were in complete agreement (signed all the same opinions). Alito and Gorsuch overlapped completely on 14, Roberts 12, Kennedy 11, Kagan 9, Breyer and Ginsburg 8, and Sotomayor 7.

Posted by: brad | Jul 2, 2017 4:44:22 PM

The comments to this entry are closed.