April 17, 2017

This morning, Neil Gorsuch asked his first questions as a Supreme Court Justice.

Reporting at SCOTUSblog, Amy Howe stresses how strongly Gorsuch displayed his commitment to texualism:
Chris Landau was the first attorney... on the receiving end of Gorsuch’s first question as a justice. Exactly what part, Gorsuch wanted to know, of the federal statute at issue provided for the path that Landau was advocating? Landau started to respond by pointing to a Supreme Court case, but he didn’t get far before Gorsuch interrupted him to focus again on what he described as “the plain language” of the statute.

A few minutes later, Landau sought to reassure the justices that his client was not asking the Supreme Court to “break new ground” with its ruling. But Gorsuch again seemed skeptical, suggesting that what Landau was in fact asking the justices to do was to “just continue to make it up.”...

Gorsuch [asked] Brian Fletcher, the assistant to the U.S. solicitor general... whether it wouldn’t “be a lot easier” if we just followed the plain language of the statute. And when Fletcher started to outline the reasons underlying the government’s position, Gorsuch pressed Fletcher to explain “where” in the statute the government’s proposed rule found support.
In contrast to that textualist pedestrianism, Justice Alito "stole the show" — in Howe's view — by complaining that the statute is “unbelievably complicated.” He asked, colorfully: "who wrote this statute? Someone who takes pleasure in taking the wings off flies?"

You know what I take pleasure in? The opportunity to give a post the "insect politics" tag.

51 comments:

TreeJoe said...

Sounds to me like he was making a point that arguments should be based first upon careful understanding of the statutes and second about precedents.

Sounds to me like Gorsuch as dropping some tomahawks.

Larry J said...

I agree with holding to the actual written text of the law instead of speculating what Congress might have intended or judges making up shit as they go. After all, if the actual text of the law isn't the standard, how can ordinary people know what the law is at any given time? The tired old "ignorance of the law is no excuse" line would be pushed aside as well since "the law" only means what judges say it means, not what the law actually says.

Actually, this could possibly be used as motivation to get politicians to write better laws. I remember when the HIPPA laws came out and hospital ERs believed they couldn't share medical information on accident victims with the police departments. The HIPPA laws were so poorly written that it was easy to understand the confusion.

Drago said...

Can't wait for the "Gorsuch dares to ask questions from Garlands seat: This is how Democracy Dies" headlines.

Todd said...

Larry J said...
I agree with holding to the actual written text of the law instead of speculating what Congress might have intended or judges making up shit as they go.

After all, if the actual text of the law isn't the standard, how can ordinary people know what the law is at any given time? The tired old "ignorance of the law is no excuse" line would be pushed aside as well since "the law" only means what judges say it means, not what the law actually says.

Actually, this could possibly be used as motivation to get politicians to write better laws. I remember when the HIPPA laws came out and hospital ERs believed they couldn't share medical information on accident victims with the police departments. The HIPPA laws were so poorly written that it was easy to understand the confusion.

4/17/17, 1:13 PM


I agree with you on all points. Judges shouldn't get to "just make sh*t up" but far too many do. The law should be as concise and plain spoken as possible such that lay persons can understand it. Judges should NEVER correct the written law. If it is crappy law, make the Government fix it. The only way we will get more thoughtful law is if all law is firmly applied. Just as the people deserve the government the vote for, good and hard. The country deserves the laws that the government passes, good and hard.

The only thing I would change is remove those "special" exemptions from all levels of government. No government employee (to include Congress) should be exempt from any laws that apply to "the people" and there should be an end to "qualified immunity". Screw that sh*t. You have the power of the gun behind you, you are fully responsible for your actions. Period. If more in government (to include police and Congress, etc.) were held to account, there would be much less screwing around with people going on.

Matthew Sablan said...

It's a good question, and one I ask when I'm doing anything with clearly defined rules. Many, many a Magic: The Gathering problem is solved when I ask: "Why would you think that? Where on the card does it say it does that?"

Bob said...

> "You know what I take pleasure i[n]? The opportunity to give a post the "insect politics" tag."

Sounds like Gorsuch enjoys what Herman Melville called "entomological criticism" (something Melville neither practiced nor appreciated).

Ignorance is Bliss said...

Justice Gorsuch asks a bunch of questions? Would it be fair to assume that all the people who complain about Justice Thomas' lack of questions will be pleased to have Justice Gorsuch on the bench?

Mike Sylwester said...

Larry J at 1:13 PM

HIPPA

HIPAA = Health Insurance Portability and Accountability Act.

J. Farmer said...

Do we actually even need oral arguments? Just let the petitioner and responder submit their briefs, and if the justices have questions, let them submit them in writing. Oral argument just seems like a big waste of time.

Mike Sylwester said...

But Gorsuch again seemed skeptical, suggesting that what Landau was in fact asking the justices to do was to “just continue to make it up.”...

What's with the quote marks?

Did Gorsuch utter the words "just continue to make it up"?

J. Farmer said...

@Mike Sylwester:

Did Gorsuch utter the words "just continue to make it up"?

Yeah, here's the relevant transcript:

MR. LANDAU: Because it doesn't refer to the
district court's standard review of the civil service
claim. But, of course, just to be clear, that is true
for cases where mixed cases involve substantive civil
service issues and procedural civil service issues, and
everybody agrees that those go to district court.
So we're not asking this Court to break any new ground.
It's --
JUSTICE GORSUCH: No, just to continue to
make it up.
MR. LANDAU: Well, no. I mean, just -- Your
Honor, again, I think the fact that it's not there just
doesn't -- doesn't mean that it's not supposed to,
because the statutory scheme --

Ignorance is Bliss said...

Mike Sylwester said...

Did Gorsuch utter the words "just continue to make it up"?

I suspect a poor transcript. It's easy to miss the sh sound.

Ignorance is Bliss said...

It does seem rather insulting to your new colleagues to accuse them of just making it up.

A richly deserved insult.

J. Farmer said...

@Ignorance is Bliss:

I suspect a poor transcript. It's easy to miss the sh sound.

No, actually he was interrupting a lawyer, whose statement was: "So we're not asking this Court to break any new ground." And Gorsuch interjected: "No, just continue to make it up."

Ignorance is Bliss said...

J. Farmer said...

No, actually...

It was a joke. But, if I have to explain it, apparently not a very good one.

J. Farmer said...

@Ignorance is Bliss:

It does seem rather insulting to your new colleagues to accuse them of just making it up.

A richly deserved insult.


He was not making that statement in terms of interpreting the US Constitution. The argument he is making is about the odd wording and correct interpretation of US Code 7703 - Judicial review of decisions of the Merit Systems Protection Board

J. Farmer said...

Oops. Sorry. And I try to think of myself as having a good sense of humor.

Todd said...

Ignorance is Bliss said...
J. Farmer said...

No, actually...

It was a joke. But, if I have to explain it, apparently not a very good one.

4/17/17, 1:44 PM


I happened to have found it amusing so there is at least that...

Dust Bunny Queen said...

After all, if the actual text of the law isn't the standard, how can ordinary people know what the law is at any given time? The tired old "ignorance of the law is no excuse" line would be pushed aside as well since "the law" only means what judges say it means, not what the law actually says.

Correct. It is like Alice in Through the Looking Glass where things don't mean what they say and things are not what the seem. When the words in the law are in flux like oil on water and can morph into meanings that are ever changing, then the laws mean nothing.

If the laws mean nothing or are as substantial as smoke....why should anyone follow any laws. Ever?

Jupiter said...

"The justices opened their April session with a case presenting a technical but important question about appeals from decisions by the Merit Systems Protection Board, which reviews federal employees’ claims that they were wrongly fired, suspended or demoted. When the MSPB rules that it lacks the authority to rule on an employee’s claim because the employee cannot appeal the allegedly wrongful action, but the employee also alleges that she has been the victim of discrimination – a so-called “mixed case” – does the case then go to a federal district court, or to the U.S. Court of Appeals for the Federal Circuit?"

So this is basically a case about the special legal rights that federal employees have awarded themselves.

Sebastian said...

Under our current dispensation, no one knows what the law is until the Court has spoken, whether a complicated statute or a simple Constitutional provision is at issue. The US systematically and continuously violates Lon Fuller's morality of law, and has the gall to to tell citizens that their ignorance is no excuse.

Comanche Voter said...

Ah the eternal hope that politician-legislators could draft clear language. Kinda like waiting for the Easter Bunny to deliver you a basket of eggs. No reason why you can't hope--but also no reason to believe it will ever actually happen.

Matthew Sablan said...

"I think the fact that it's not there just doesn't -- doesn't mean that it's not supposed to,"

-- Then tell the legislature to put it in there with an amendment. This... feels so open and shut.

Saint Croix said...

I hope he goes full Hugo Black!

That would be awesome.

And boy do I look forward to a simple question.

"Who is a person? Who is not a person?"

The argument that corporations are honorary persons while unborn babies are sub-human property has no textual support whatsoever.

Saint Croix said...

He should start carrying a little pocket size Constitution around with him.

And pull that sucker out and read from it!

Larry J said...

Dust Bunny Queen said...
After all, if the actual text of the law isn't the standard, how can ordinary people know what the law is at any given time? The tired old "ignorance of the law is no excuse" line would be pushed aside as well since "the law" only means what judges say it means, not what the law actually says.

Correct. It is like Alice in Through the Looking Glass where things don't mean what they say and things are not what the seem. When the words in the law are in flux like oil on water and can morph into meanings that are ever changing, then the laws mean nothing.

If the laws mean nothing or are as substantial as smoke....why should anyone follow any laws. Ever?


There are a set of pretty lies we like to tell ourselves. One of them is "rule of law" when what we have today is "rule of judges". Suppose you consult with a lawyer in accordance with the Lawyer Full Employment Dictum of "ignorance of the law is no excuse". The lawyer examines the matter and shows you that the written law is X. At any time, a judge can ignore the written law and say that it really means Y. You could be completely in compliance with X but in serious trouble because the judge says Y. You're screwed.

We also like the pretty lies of "equal justice under the law" and "we're a nation of laws, not of men". They sure do sound nice but, as has been shown repeatedly, are both bullshit.

Henry said...

How do lawyers answer rhetorical questions?

Henry said...

"Yes, your honor. This statute was written by a Congress of eight-year-old boys."

Todd said...

Henry said...
"Yes, your honor. This statute was written by a Congress of eight-year-old boys."

4/17/17, 2:31 PM


You misogynist!

There are 8 year old girls in that pile too you know!

Henry said...

You misogynist!

Do they pull wings off flies?

Sebastian said...

Holmes's "prophecies of what the courts will do in fact" wasn't quite cynical enough since it assumed predictability and consistency.

Pretextualism has long since prevailed over textualism. Good luck to Gorsuch in trying to bring it back. (I'm not asserting, of course, that "traditional" judges were honest textualists, or that textualism yields easy answers in all cases.)

Tom said...

My favorite legal question of all time is, "can you show me those words (what you claim is law) in these words (the actual law)?"

I was in a deposition with the federal government when my lawyer asked that question repeatedly and it almost caused the agency administrator's head to explode. She was making up the law and she went and got called on it. Needless-to-say, the citation we were contesting was vacated.

Left Bank of the Charles said...

It's hard to argue that the plain language of a statute compels a certain result when the statute is not written in plain language.

DanTheMan said...

Elections matter. Words, not so much...

rehajm said...

But, if I have to explain it, apparently not a very good one.

I got it!

Please continue making..uh..it up...

Saint Croix said...

To me it's always dangerous when judges start doing word substitution.

For instance, I believe the Supreme Court has (secretly) replaced the word "person" in the equal protection clause with the word "taxpayer."

No state shall deny any taxpayer the equal protection of the laws.

Corporations pay taxes. That's why the government loves corporations. Corporations provide income to the state, and so the state is interested in giving them access to the federal courts. They do this so commerce can happen, contracts can be enforced, and we can all make money and improve our station in life. That's why the government likes corporations, and they are honorary persons.

Babies don't pay taxes. Babies cost money. There is no income from a baby. It's all outgo. You're going to have to feed that baby and shelter that baby. The financial cost of having a baby accounts for almost all of the stress of having a baby. It's why a baby is unwanted in the first place. A baby is another mouth to feed. You're going to have to put food on the table and a roof over her head. The government is sympathetic to this expense, and so taxpayers are given the right to kill that baby and save money. The state doesn't mind this homicide because, again, babies don't pay taxes and you can always make another one.

Callous? Yes. Dishonest? Yes. But this is the hidden bias that is the basis of the logic of Pembina SIlver Mining and Roe v. Wade. We like corporations because they pay taxes and provide money to the state. We have a bias against babies because they are like welfare recipients. They don't pay taxes, they don't make money, it's just cost, cost, cost.

The only way for a judge to battle this, or any other bias, is to pay careful attention to the words and respect the language that is chosen. Many provisions in our Constitution deal specifically with money. But the equal protection clause does not. It deals with human beings, and this magnificent text says that no state shall deny to any person the equal protection of the laws.

Todd said...

Henry said...

You misogynist!

Do they pull wings off flies?

4/17/17, 2:48 PM


Some pull b*lls off of men, does that count?

Achilles said...

After RBG and Kennedy are replaced we might have something resembling a court with people who act like judges. This is crazy.

Joe said...

Henry, you give Congress too much credit.

The Godfather said...

I don't know anything about the particular statute involved in this case, but it's true that it's often easier for advocates, on either side of an issue, to rely on court opinions about the statute than on the statutory language. In part that's true because some statutes (and administrative regulations) are badly written, but it's also the case that the drafters of the statute weren't really imagining all the situations to which the statutory language might have to be applied. So the application of the statute to thousands of cases can be obvious, but then the unusual case comes along where the application isn't clear, and of course that's the case that gets litigated. There's a strong temptation for an advocate to say, Well in Jones v. Smith the situation was pretty similar to the present case, and so the result in this case should be the same as in that case. Or the advocate can stress public policy or fairness to a particular party. It's really hard, particularly in oral argument, to slog through the words of a complex and technical statute to show why your client should win.

Even when the language seems clear, such as "an exchange established by a state", the ruling may surprise you.

LightenUpFrancis said...

I practice in the area and it's a really gross question that no one likes to encounter. The issue is really hideous - it's a mix of who is the proper appellate authority, jurisdiction v. substantive determinations, and administrative exhaustion, all into one. The applicable statute is a mess, but it is also a hard policy goal to implement (getting the case in front of the right justices consistently, avoiding claim splitting, while letting claimants see their daddy in court). Discerning ideological leanings from a case line this is a bit much.

I think that SCOTUSblog's commentary is unfair and strips the context from the exchange. An advocate should be able to answer a question as to the statutory basis of a prior decision, and here the advocate was dancing around the fact that the statute isn't particularly clear and that the SCts prior decision was based on some interpretive gap filling, defensible or not.

LightenUpFrancis said...

Heh, daddy in court. Bloody autocorrect. DAY.

Martin said...

If they ever revisit Roe v. Wade or Obergefell, Gorsuch's head my explode.

David said...

The most subversive aspect of this approach is insisting that Congress actually do its job with competence.

Gahrie said...

If they ever revisit Roe v. Wade or Obergefell, Gorsuch's head my explode.

Hell..I'd like to give him a shot at Griswold.

urbane legend said...

rehajm said...
But, if I have to explain it, apparently not a very good one.

I got it!

Please continue making..uh..it up...


I got it also, and second rehajm's request.

Gahrie said...

Many, many a Magic: The Gathering problem is solved when I ask: "Why would you think that? Where on the card does it say it does that?"

Right here on this errata sheet issued by Wizards of the Coast.

Jupiter said...

Tom said...

"I was in a deposition with the federal government when my lawyer asked that question repeatedly and it almost caused the agency administrator's head to explode. She was making up the law and she went and got called on it. Needless-to-say, the citation we were contesting was vacated."

Also needless to say, the agency administrator collected her pay for the day, just as if she were doing her job correctly. The way it works in government is, on a good day, you get to fuck somebody over. On a bad day, you have to be content with getting paid by the person you tried to fuck over. And of course, you'll always have your pension to look forward to.

Saint Croix said...

Note that "taxpayer" is broader than "citizen," since illegal immigrants, tourists, and other non-Americans pay at least some taxes, for instance sales taxes.

The Supreme Court has a line of cases where they focus on the distinction between "citizen" and "person." The 14th Amendment uses both words. Our Constitution talks about the "privileges and immunities" of citizens, and the right of all persons to receive the "equal protection of the laws."

A newborn is a citizen. Thus the Supreme Court's lack of regard for babies did not save Kermit Gosnell from a murder conviction. He was murdering citizens, even though the citizens he was murdering were born prematurely, and were younger victims that some of the unborn babies the Supreme Court continues to define as non-persons and subject to its abortion regime. The Supreme Court is not brave enough, or stupid enough, to deny the humanity of citizens, regardless of how little the Supreme Court cares about babies in general.

Ironically Justice Blackmun was the author of several of the opinions that blur the distinction between "citizens" and "persons." He wrote the above case (Sugarman) the same year he wrote Roe v. Wade. According to this line of cases, laws that discriminate against "aliens" are subject to strict scrutiny. As Blackmun put it, "classifications based on alienage, like those based on nationality or race, are inherently suspect." With these words Blackmun would cast doubt on the idea of citizenship, in the same way that Roe casts doubt on humanity.

Saint Croix said...

John Hart Ely (like our blog hostess, a pro-choice law professor) wrote a blistering attack on Blackmun's opinion shortly after it was published. This is not a pro-life attack, mind you. It's an attack on Blackmun's disregard for legal norms and how words and laws should be read and followed.

Here is a snippet:

the bodies of doctrine to which the Court adverts respecting the protection of fetuses under general legal doctrine tend to undercut rather than support its conclusion. And the argument that fetuses (unlike, say, corporations) are not "persons" under the Fourteenth Amendment fares little better. The Court notes that most constitutional clauses using the word "persons"-such as the one outlining the qualifications for the Presidency appear to have been drafted with postnatal beings in mind. (It might have added that most of them were plainly drafted with adults in mind, but I suppose that wouldn't have helped.) In addition, "the appellee conceded on reargument that no case can be cited that holds that a fetus is a person within the meaning of the Fourteenth Amendment." (The other legal contexts in which the question could have arisen are not enumerated.) The canons of construction employed here are perhaps most intriguing when they are contrasted with those invoked to derive the constitutional right to an abortion.

To be sure, Ely's opinion is a legal attack, focused on procedural criticisms (an Ely speciality). The pro-life movement, of course, want us to focus on the substance of what happened. The humanity of innocent people has been denied by our government, which is claiming that it is "right" to kill them. To his great credit Ely does discuss the ramifications of not thinking about the life of the unborn child, and how homicides might result. I think this honesty is due to the speed in which Ely wrote his article (published the same year as the opinion).

Jon Ericson said...

Another wise latinx.
Not on the Supreme Court, yet.