Washington, D.C.

Bitter fight behind him, Gorsuch starts day with relish

'We wish you a long and happy career in our common calling'
The Supreme Court building on Capitol Hill in Washington on April 17, 2017.
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The Supreme Court building on Capitol Hill in Washington on April 17, 2017.

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WASHINGTON — For the first time in more than a year, nine justices heard arguments at the Supreme Court on Monday. The new member of the court, Justice Neil Gorsuch, sat on the far right side of the bench, in the spot reserved for the most junior justice.

If Gorsuch experienced first-day jitters, he did not betray them. He was an exceptionally active questioner, displaying an easy familiarity with the issues in the three minor and technical cases before the court. He asked crisp and colloquial questions, and he kept asking them if he did not find the lawyers’ answers satisfactory.

There was no acknowledgment inside the courtroom of the bitter fight that led up to the seating of the new justice. But his presence was noted by Chief Justice John G. Roberts Jr. at the start of the day.

“Before we commence the business of the court this morning, it gives me great pleasure on behalf of myself and my colleagues to welcome Justice Gorsuch as the 101st associate justice of this court,” Roberts said. “Justice Gorsuch, we wish you a long and happy career in our common calling.”

Gorsuch, 49, responded cordially. “Thank you to each of my new colleagues for the very warm welcome I received this last week,” he said. “I appreciate it very much.”

About 10 minutes into the first argument, Gorsuch asked a half-dozen questions in a row. The case, about where Civil Service and discrimination claims may be filed, was “unbelievably complicated,” as Justice Samuel A. Alito Jr. noted.

“Who wrote this statute?” Alito asked. “Someone who takes pleasure in pulling wings off of flies?”

But Gorsuch approached the case with relish, and he made what is likely to become one of his signature points, that the court’s job is limited to reading the words of the statute under review.

“Looking at the plain words of the statute,” he told a lawyer, Christopher Landau. “If you could just help me with that.”

Gorsuch grew a little self-conscious as he kept pressing. “I’m sorry for taking up so much time,” he said. “I apologize.”

Later, when Landau started reading the statutory text aloud, Gorsuch said, “Keep going. Keep going.”

As the lawyer and the justice examined the language together, Landau, in a tone of pleased surprise, said, “I think I am maybe emphatically agreeing with you.”

Gorsuch welcomed the comment. “I hope so,” he said, to laughter.

Landau said his client was “not asking the court to break any new ground” by interpreting the statute to allow some filings.

Gorsuch agreed, in a way. “No,” he said, “just to continue to make things up.”

Toward the end of the first argument, in Perry v. Merit Systems Protection Board, No. 16-399, Gorsuch returned to his basic theme. “Wouldn’t it be a lot easier if we just followed the plain text of the statute?” he asked Brian H. Fletcher, a lawyer for the federal government. “What am I missing?”

Fletcher said there were reasons to interpret the statute broadly. But that was not what Gorsuch wanted. “Not reasons,” he said. “Where in the language?”

Gorsuch’s intense interest in the case made him a likely candidate for writing the majority opinion, if he ends up in the majority. Other members of the court showed less enthusiasm for the case.

Justice Sonia Sotomayor asked Fletcher about the implications of his position. “If we go down your route, and I’m writing that opinion,” she said, before shuddering at the thought. “Which I hope not,” she said, drawing laughter.

In the day’s second argument, in Town of Chester v. Laroe Estates, No. 16-605, concerning standards for who may pursue a lawsuit, Gorsuch praised one lawyer and gently chided another.

Drawing on a brief filed by Shay Dvoretzky, a lawyer for a real estate developer, Gorsuch asked Sarah E. Harrington, a lawyer for the federal government, about an aspect of her argument. She admitted that her adversary had the better of the exchange.

“I will concede that my friend, Mr. Dvoretzky, has very ably pointed out the flaws in our constitutional avoidance argument, and I’m not pressing that argument here,” Harrington said.

Gorsuch seemed pleased. “I appreciate the candor of that concession,” he said.

On another point, Gorsuch pressed Dvoretzky for a more precise response. “I’m sorry for interrupting, counselor,” Gorsuch said. “If you would just answer my question, I would be grateful.”

Dvoretzky’s next attempt did not seem to satisfy Gorsuch, either, and he tried again.

“The question is whether a plaintiff can seek a judgment against a defendant in someone else’s name,” Gorsuch said. “Generally not, right? That’s not a trick question.”

Dvoretzky gave a finely hedged answer, and Gorsuch smiled.

“I’ll let you go,” the justice said, giving up.

The court also heard a rare afternoon argument, about time limits for filing securities class actions. Some of the justices’ energy was flagging by then, but Gorsuch remained attentive and engaged.

The case, California Public Employees’ Retirement System v. ANZ Securities, No. 16-373, turned in part on the meaning of the word “action” in the phrase “in no event shall any action be brought” after a given time.

Gorsuch returned to his by now usual refrain. “Why shouldn’t we follow the plain language and the traditional understanding of the word ‘action?’” he asked.

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