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Gorsuch Doesn’t Give a ‘Fig’ What You Think, Just Like Mentor

July 27, 2020, 8:51 AM

Disaffected conservatives reaching for comparisons between Supreme Court Justice Neil Gorsuch and the retired David Souter—a George H. W. Bush nominee who became a reliable member of the court’s liberal wing—might be more dismayed that he’s more like Justice Byron White.

Gorsuch clerked for White, the only other justice from Colorado, and served as an appellate judge in the Byron White courthouse in Denver. He told senators he considered White a childhood hero at his confirmation hearing. He now keeps a bust of White in his chambers that the Supreme Court curator found in storage.

And like White, who was progressive on race issues but a fervent opponent of Roe v. Wade, Gorsuch took positions over the recently completed term that confounded easy labeling. He voted to uphold a Louisiana abortion restriction while agreeing that anti-discrimination laws protect LGBT workers and joining the court’s four liberal justices to find that most of eastern Oklahoma may still belong to five Native American tribes.

Gorsuch is “less concerned about the consequences of his decisions, as he views those as being more the concern of the political branches,” said Riyaz A. Kanji, whose victory in the tribal jurisdiction case was made possible by Gorsuch dismissing warnings that the ruling could jeopardize thousands of state criminal convictions.

Central to the Gorsuch-White bond was their shared identification as westerners, as opposed to the Beltway pedigree of many of the modern justices.

White grew up in a Colorado town of 550 with undisturbed views of the Rocky Mountains before becoming a football star at the University of Colorado, where in 1937 he was runner-up for the Heisman Trophy as the nation’s best player. That’s also where he earned the nickname he came to loathe: Whizzer.

After graduation, he alternated between Yale Law School and the National Football League, where he earned the highest salary of his day and twice led the league in rushing yardage. That would make White, along with former President turned Chief Justice William Howard Taft, the rare justices better known for what they did before joining the court than what they did on the bench.

White was the first former clerk to return as a justice, a path Gorsuch followed along with Chief Justice John Roberts and Justices Stephen Breyer, Elena Kagan, and Brett Kavanaugh. White retired from the court in 1993 shortly before Gorsuch began his clerkship and Gorsuch wound up working with both White and Justice Anthony Kennedy.

While their approaches to the law differ, with Gorsuch showing a deep commitment to textualism, both justices were known for believing in separation of powers and that judges should, as Gorsuch has put it, “stay in their lanes.”

As Gorsuch wrote about his former boss in 2002, he followed a judicial philosophy of “confidence in the people’s elected representatives, rather than the unelected judiciary,” no matter the potential consequences.

His Own Man

Gorsuch shares another trait with White, which could help explain Gorsuch’s disregard for the consequences of his rulings. “I honestly think he just doesn’t care what people think about him,” said law professor Daniel Epps, of Washington University in St. Louis.

In his 2019 book, “A Republic, If You Can Keep It,” which is full of admiring references to White, Gorsuch notes his fellow Coloradoan “never cared a fig when others criticized him—as many did, harshly and often, sometimes for supposedly ‘straying’ from results they expected of him, and at other times for doing exactly what they knew he would do.”

Gorsuch observed the criticism that comes with serving in Washington as a student at the prestigious Georgetown Prep.

His mother, Anne Gorsuch Burford, was the first woman to head the Environmental Protection Agency, under President Ronald Reagan. Her rocky tenure ended when she resigned after refusing —at the White House’s direction—to turn over documents regarding the possible mishandling of the $1.6 billion Superfund, the federal government’s trust fund for hazardous sites. She was the first Cabinet-level official cited for contempt of Congress.

Gorsuch knows the “slings and arrows of public service,” said University of Chicago law professor Dennis Hutchinson, who also clerked for White and later wrote a biography about him.

Following Scalia?

Most court watchers expected Gorsuch, once confirmed, to be more in the mold of the justice whose seat he now occupies: Justice Antonin Scalia, “mostly conservative with some instances where his methodology led him to seemingly liberal results,” said Epps.

For both Gorsuch and Scalia, textualism—the idea that judges should look at the text of a statue to determine what it means, rather than referring to legislative history or intent—is a “deep driving principle” of their judicial philosophies, said Emory University law professor Fred Smith, Jr. White was often criticized for not having any consistent judicial philosophy to apply.

Another way Gorsuch is more like Scalia than White is in how he displays his self-confidence and assurance. In just his third oral argument, Gorsuch interrupted Roberts—twice—to correct him on which interstate highways run through Wyoming and Montana.

He went on a national book tour in the fall of 2019—complete with his first television news interview on Fox News—just as he began his third full term.

White, by contrast, came to loathe the media during his football career and had had enough publicity to last a lifetime. He was content to stay out of the spotlight as a justice, comfortable in the knowledge he’d eventually be consigned to obscurity.

In his 2019 book, Gorsuch recounts walking as a clerk with White down the ground-floor hallway of the court that’s lined with portraits of former justices. White asked how many he could name. Gorsuch admitted he could only name half.

White replied, “Me too. We’ll all be forgotten soon enough.”

To contact the reporter on this story: Kimberly Strawbridge Robinson in Washington at krobinson@bloomberglaw.com

To contact the editors responsible for this story: Seth Stern at sstern@bloomberglaw.com; Bernie Kohn at bkohn@bloomberglaw.com

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