Justices Ruth Bader Ginsburg and Neil Gorsuch are trading barbs, rather frequently, in the first sitting of the Supreme Court’s new term.
It’s all quite civil of course. Fraternalism, good cheer, and a stiff upper lip are the order of the day on the Roberts Court. What’s a little jiggery-pokery between brothers in black? Perhaps nothing. But in the early days of October Term 2017, Gorsuch has frequently questioned the received wisdom of his Court, prompting from Ginsburg a flash of pique.
The first such instance occurred Oct. 3, during arguments in Gill v. Whitford, a marquee case concerning the constitutionality of partisan gerrymandering. At one juncture, Gorsuch wondered if the high court had any business hearing the dispute at all. Ginsburg’s reproach was sharp and fast.
“Maybe we can just for a second talk about that arcane matter, the Constitution,” Gorsuch asked lawyer Paul Smith. “Where exactly do we get authority to revise state legislative lines?” He listed the constitutional provisions allowing federal intervention in state legislative matters (which concern apportionment and voting rights), so as to demonstrate that, in his view, there is no obvious grant of federal authority over state district maps.
Smith replied that the Supreme Court has used the First and Fourteenth Amendments to regulate state elections for decades — then Ginsburg chimed in.
“Where did one-person/one-vote come from?” she asked.
Her question is a reference to the principle announced by the Court in a 1964 case called Reynolds v. Sims, which requires proportional populations among legislative districts. The case was occasioned in 1961 when a group of Alabama voters challenged the state senate’s apportionment scheme, which awarded one senator to each county. There were extreme population variances under this regime. Though some urban counties had nearly 41 times as many citizens as rural counties, each was entitled to only one state senator. The Warren Court announced this practice, common to other states around the country, ran afoul of the Constitution’s equal protection clause.
In invoking this principle, Ginsburg was plainly rebutting Gorsuch’s point. This is not unusual during an oral argument. The New Yorker’s Jeffrey Toobin suggests the exchange reveals not a little animosity between Ginsburg and her new colleague, though he stretches the relevant facts to substantiate this reading. Writes Toobin: “There might have been an audible woo that echoed through the courtroom. (Ginsburg’s comment seemed to silence Gorsuch for the rest of the arguments.)”
I heard no such reaction in the courtroom when the case was argued. Were he indeed interested in confirming the veracity of this claim, he could have checked it against the audio recording of the argument. I did, for fear I had missed the wooing — but there was no woo to be heard. It is also inaccurate to say the remark “silenced” Gorsuch for the remainder of the argument. He asked another question less than one minute later, and asked six questions in the argument that immediately ensued. Vanquished only in Toobin’s mind, it would seem.
At first, the Ginsburg-Gorsuch exchange seemed less like a smack about the head and more like an ordinary jurisprudential disagreement. Gorsuch simply gave voice to the longstanding originalist suspicion of Reynolds, Baker v. Carr, and their progeny. In rebuttal, Ginsburg countered that the Court has been adjudicating disputes involving state district lines for 50 years. It heard two such cases just last term. Her new colleague may disagree with the trajectory the Court pursued half a century earlier, but as the late Justice Antonin Scalia once said, stare decisis is Latin for water over the dam.
It was the sort of to and fro that is typical of an oral argument. But it is difficult to ignore, because digs of the same sort were traded one week later.
The justices heard argument Wednesday in a case called Jesner v. Arab Bank, as to whether corporations can be sued by foreign nationals in American courts for human rights violations under a 1789 law called the Alien Torts Statute (ATS).
As in the Gill argument, at one point Gorsuch took an originalist tack, and asked lawyer Jeffrey Fisher if the Congress which adopted the ATS understood international law to be part of U.S. law. This question matters because the ATS allows lawsuits from foreign nationals in American courts for violations of “the law of nations.” In essence, Gorsuch is suggesting that the scope of possible ATS actions and defendants is quite restricted, because the 1789 Congress’s conception of international law as a component of American law was limited to a narrow range of topics, like piracy, if it exists at all.
Fisher replied that the Supreme Court, in a 1900 case called Paquete Habana, concluded that the 1789 Congress integrated international law with American law.
Almost concurrently, Ginsburg asked “Isn’t that what this Court said?”
This time, Gorsuch met Ginsburg’s spar with his own parry. “I don’t doubt that’s what some have suggested since then, but do we know that was the understanding of Congress in 1789?” he asked, pointing to new scholarship which suggests Paquete Habana was wrongly decided.
As in the Gill case, Gorsuch implies a return to first principles may be a warranted corrective for a line of cases run astray, and Ginsburg quickly repudiates his proposition by insisting that the Court has long since disavowed his position. Gorsuch pushes for a revival of constitutional standards, which Ginsburg dismisses as contrary to case law and not a bit naive.
The seniority dynamic is especially relevant. It is not surprising that a 24-year veteran of the high court is disinclined to countenance her new colleague’s criticisms. I leave to the reader a judgment as to who is being haughty.
Neither instance gives the impression of personal enmity, at least in my view. But it is noteworthy that Gorsuch is comfortable publicly criticizing the work of his Court so early in his tenure, and that Ginsburg has chided him for it every time, especially because her retorts seem so superfluous. They will persuade no one, in the same way Gorsuch’s appeals are unlikely to convince any colleague not already sympathetic to his view of the world. Given their superfluity, it seems irritation is a more likely explanation for Ginsburg’s remarks. That this has happened twice in the space of two weeks further suggests Ginsburg is perturbed by Gorsuch and perhaps, just perhaps, finds him a touch arrogant.
One can’t read too much into oral arguments, and as the old adage advises, it takes three to make a pattern. Nor have the arguments borne evidence of wider hostility to the new justice. Justice Sonia Sotomayor, Ginsburg’s jurisprudential fellow-traveler, appears to hold Gorsuch in some esteem. The pair appear quite simpatico during the Court’s public sessions, trading smiles and laughs throughout.
Still, Ginsburg has rebuked Gorsuch’s every suggestion of precedential error. It’s a dynamic worth watching, and one that probably won’t be confined to arguments for much longer.
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