Chief Justice John R0berts and Justice Neil Gorsuch may have gotten off to an uneven start, a veteran Supreme Court observer suggested Tuesday.
Though the pair don’t seem to be at odds, an unsteady relationship between the two men could impair the stability of the Court’s conservative majority.
CNN’s Joan Biskupic, a veteran Supreme Court reporter and biographer, reported Tuesday that a rift opened between Roberts and Gorsuch shortly after he joined the Court in April 2017. Gorsuch declined to attend a private session with the other justices, to the chief’s discontent. Roberts, an institutionalist who cares deeply about collegiality and the integrity of the Court, may look askance on even minor snubs.
Though Biskupic is not specific as to the severity of the rift, there appear to be other points of contention.
Just three months later in July, the chief appeared to take a veiled jab at his new colleague during remarks at judicial conference in Pennsylvania. Roberts reiterated his long-held view that the Court should avoid solo concurring and dissenting opinions, and speak with one voice wherever possible.
“There’s a different level of collegiality though and that is to appreciate you are acting as a Court, not as an individual,” he said.
“You do have to take into account other people’s views,” he added. “It’s not just about you. You want to draft an opinion that reflects the views of the Court.”
In his first two months as a justice, Gorsuch wrote concurring or dissenting opinions on seven occasions. By way of comparison, the next most-junior justice, Justice Elena Kagan, wrote separately seven times in her first two years on the high court. Given the chief’s well known preference for consensus-driven opinions, his remarks in Pennsylvania were widely interpreted as a shot across Gorsuch’s bow.
It’s difficult to know how seriously to treat the incidents, as the occurred almost seven months ago.
Though Roberts and Gorsuch have parted ways in several decisions over the last year, it does not appear that he has alienated the chief as a potential partner. Still, forming coalitions on the tribunal is a delicate undertaking, as anything from a sweeping theory to an errant footnote can drive a justice out of the majority and into dissent. Justice Sandra Day O’Connor, a Ronald Reagan appointee with generally conservative instincts, was sometimes alienated by the strident approaches of Justices Antonin Scalia and Clarence Thomas in areas like abortion or affirmative action, limiting the reach of conservative victories during the Rehnquist Court years.
Given the prudent, diplomatic sensibilities often needed to command five votes on the Court, the Roberts/Gorsuch dynamic is worth watching in the coming months. If an uneven start evolves into genuine animosity, the direction of the conservative majority could be at stake.
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