The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Justice Gorsuch Explains What Collegiality Means
Does it mean going to the opera together, or a willingness to be persuaded?
It seems that Justice Gorsuch is going through the media circuit in advance of his book launch. Yesterday I wrote about this interview with the Wall Street Journal. Today, David French of the New York Times published a transcript of his NMG sit down. To go back to one of my hobby horses, when a publisher gives a book deal to a Justice, with a large advance, the publisher knowns that the media will gladly sit down for interviews in Supreme Court chambers. This is free press that cannot be purchased–well it can be purchased with a substantial advance. All the more reason to place a cap on royalties for Justices. I digress.
French and Gorsuch had an extended discussion of what was learned from the COVID cases. In truth, we need to reflect a lot more on that period than we have. So many of us (present company included) made some terrible decisions. Our faith in the power of government and self-professed "experts" was largely misplaced. And nothing that has happened since the pandemic has restored my faith. Chief Justice Roberts's "super-precedent" in South Bay has not aged well. I have to imagine that distrust was lurking in the background of Loper Bright.
I found the most enlightening exchange to turn on collegiality. I think that is a term that many people use to mean different things. It was well known that Justices Scalia and Ginsburg were dear friends, and often socialized together. They were collegial. But did RBG ever persuade Scalia to change his mind, at least on a big case? Probably not. Does that mean they were not collegial?
Of late, Justice Kagan has been pushing the latter conception of collegiality–that it entails having an open mind, and a willingness to be persuaded. I have to imagine this push is part of her effort to corral Justice Barrett's votes at every opportunity. If there is any common thread with Joan Biskupic's reporting, is that Justice Kagan flipped Justice Barrett in several cases. I've yet to see any indication that a conservative Justice has flipped a liberal member of the court to reach a conservative outcome. Flipping is not ambidextrous–it only works on the left.
I for one, reject the notion that collegiality entails a willingness to reconsider your views. It is always a judge's role to find the truth, and determine the best answer to a particular legal dispute by his or her best lights. And that process primarily entails weighing the arguments advanced by counsel, and deciding which side should prevail. To be sure, judges on a multi-member court will lobby one another for this position or that position. And to maintain relations, it is important to be willing to listen. But I do not think collegiality requires anything more than listening. Indeed, there are problems with this sort of ex-post lobbying that happens after the briefs are submitted and arguments conclude. Perhaps the parties have obvious rejoinders to some post-hoc position raised, but there is no chance to discuss it. The vote at conference reflects an assessment of the actual case, as it is presented. But when votes change after conference, invariably, it will be because of some newly-determined facet of the case that the parties did not have the chance to address. The Court could always order re-briefing and re-argument, but alas, the pattern has been to simply decide cases on grounds that would be entirely foreign to the lower courts. NetChoice and Moyle comes to mind.
David French poses this question to Justice Gorsuch, which he sort-of-answers, indirectly.
French: Justice Kagan gave some remarks to the Ninth Circuit recently where she talked about this issue of collegiality within the court. There's been some friendships, for example, most famously of Justice Ruth Bader Ginsburg and Justice Antonin Scalia. Also recently, Justice Sonia Sotomayor gave a speech in which she said some really kind things about Justice Clarence Thomas and the way that he interacts with court personnel.
But Justice Elena Kagan said something interesting. She said the collegiality that America should be looking for — and I'm paraphrasing — is not "Do we go to the opera together?" but "Are we open to each other?" Are we collegial enough to where we are open to each other? What is your temperature check on the collegiality of the court?
Gorsuch: Well, you're not going to drag me to an opera, David.
French: I wasn't expecting to.
Gorsuch: There's a lot in that question.
French: Yeah.
Gorsuch: I don't know whether you want me to talk first about the court.
French: Let's go first with the court and then with the culture.
Gorsuch: Sure. So with the court, I think it is important that we're friends and that we enjoy each other's company. We have a nice dining room upstairs. Lovely dining room, but it is the government, and we bring our own lunch. And oftentimes you'll see the chief justice with a brown bag and a peanut butter and jelly sandwich. OK. Those moments are important. They're human. But I also take the point that collegiality in a work environment means being able to work together well. And can I share just some numbers with you that I think tell the story on that?
Gorsuch goes on to explain that the Court decides many cases unanimously, and that he often votes for the "liberal" side of the case. And he says those unexpected coalitions are evidence of "collegiality."
Gorsuch: We decide the 60, 70 hardest cases in the country every year where lower courts have disagreed. That's the only point to get a case to the Supreme Court. We just want federal law — largely our job is to make sure it's uniform throughout the country, and if the circuit courts are in agreement, there's very little reason for us to take a case, unless it's of extraordinary importance.
So most of the work we do is when lower court judges disagree about the law. Magically, I think in this country there are only about 60 or 70 cases. You could argue a little bit more, a little bit less, but there aren't thousands of them. They're very few in number.
There are nine of us who've been appointed by five different presidents over the course of 30 years. We have very different views about how to approach questions of statutory interpretation, constitutional interpretation about political disagreements or interpretive methodological disagreements. Yet we're able to reach a unanimous verdict on the cases that come before us about 40 percent of the time, I think it might have been even higher this last term. I don't think that happens automatically.
I think that's the product of a lot of hard work. I think that's proof of collegiality. OK? That is what we do and we do well. Now people often say, "Well, what about the 6-3s?" Fair enough. Fair enough. But that's about a third of our docket. And it turns out they aren't always what you think they are. About half the 6-3s this last term are not the 6-3s you're thinking about.
Okay, Gorsuch does not actually answer the second part of Kagan's question. The fact that the Justices vote in unusual ways reflects the fact that all of the Justices are, to various extents, heterodox. They are not–contrary to what you might read–ideologues. Trust me, if we had an actual MAGA Court, things would look very different. But Gorsuch does not even hint that collegiality requires a willingness to be persuaded. It is the facts of a case, and the arguments advanced by counsel, that determine the unusual lineups.
I would like this same question posed to Justice Barrett. I think she might see things differently.
French also asked about Justice Kagan's ethics proposal. Gorsuch explains that the facts changed since Kagan's speech. Namely, President Biden wrote a pointless op-ed and Senator Schumer introduced a nuclear bill.
French: We're running out of time, so I do want to get to a couple of other questions. One, Justice Kagan also raised this interesting idea regarding ethics. And she talked about that the Supreme Court has a code of ethics that she appreciates, but she also talked about the possibility of enforcement through — and I'll read the quote here, one moment — "If the chief justice appointed some sort of committee of highly respected judges with a great deal of experience, with a reputation for fairness, you know, that seems like a good solution to me."
And a reason for that, the creation of sort of an outside judicial panel would, part of it would be to protect the court, to provide an outside voice that could not only adjudicate potentially valid claims but also debunk invalid accusations. And she made it clear she was speaking only for herself. What's your reaction to that concept?
Gorsuch: Well, David, since that talk, there's been some developments in the world, and this is now a subject that's being intensely discussed by the political branches, and I just don't think it would be very useful for me to comment on that at the moment.
In hindsight, would Kagan still have given her remarks, knowing what would come the following week? Or perhaps Kagan knew what was coming, and gave her remarks to shift the Overton Window? We are working with a crafty, plugged-in operator here, so be skeptical. How does that work for collegiality?
To get the Volokh Conspiracy Daily e-mail, please sign up here.
Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Comments may only be edited within 5 minutes of posting. Report abuses.
Please
to post comments
This criticism doesn’t make a whole lot of sense. Recall that your original complaint was that the jusrices’ books are unlikely to make back their respective advances, turning those payments into the equivalent of a gift, rather than a purely market-driven business transaction. If the justices are inherently capable of generating free publicity for their books in this way, that makes the books more valuable, and justifies the advance. Unless you’re suggesting that these interviews will help sell unrelated books that happen to also be published by HarperCollins? If so, that seems pretty unlikely to me.
For me, the most hilarious line was this one coming from our burn-the-government-down Heritage man:
“Our faith in the power of government and self-professed “experts” was largely misplaced”
He might have been talking about the people whose faith tends toward superstition and virus-flouting, antisocial, disaffected, anti-government cranks.
The man will handle snakes, speak in tongues but won’t listen to ‘experts’ (ie doctors. I wonder if Blackman considers himself an expert in anything? I suppose he’s fucked either way he answers that.
Noscitur — Here is a better solution. Triple the justices’ salaries. Then bar household income from any other source, including spousal income, until the justice has retired from the Court. What a bargain that would be for the American People. Prior savings could be put in blind trust during court tenure.
Gorsuch’s collegiality = warm and hospitable
Kagan’s collegiality = [checking notes] dark and tactical
Great read, Blackman. Great post.
And that process primarily entails weighing the arguments advanced by counsel, and deciding which side should prevail.
Justice Alito, at least, agrees with Blackman, including on the question which side should prevail. I suppose that makes Blackman and Alito collegial.
I’m sure it will shock all people who have been in a coma for the last decade that Blackman rejects the idea of being willing to reconsider one’s views.
Nice strawman. Blackman clearly said that =/= collegiality.
Never expect the truth from a Talmudian.
Ad hominems and strawmen are David’s specialty. Ignore him.
I for one, reject the notion that collegiality entails a willingness to reconsider your views.
Gorsuch says collegiality means being about to politely work together. So, Thomas and liberal justices were collegial, even if they did not do much convincing in both directions.
Kagan’s via a CNN article is quoted:
“What the public should care about is … if the collegiality brings about a certain kind of decision-making process. In other words, if it leads to people listening to each other in talking about the law and in talking about cases and making decisions,” Kagan said. “If it leads to people being able to step into each other’s shoes and see the world through another person’s eyes or see certain legal issues through a different perspective.”
That’s a bit more complex but it is not only about changing people’s minds. It is understanding each other’s point of view. Kagan says the public should not only care if justices eat lunch together or something. I don’t think her comment is nefarious.
https://www.cnn.com/2024/07/25/politics/kagan-supreme-court-ethics-sacramento-conference/index.html
Let’s be honest: Kagan (nor the other liberal justices) has no interest in “crossing the aisle” to support conservative priorities. That transaction *almost* always goes one way (conservative justices voting with the liberals). Kagan isn’t dumb. She knows this to be true.
In that sense, it is nefarious.
Just because many on the right find almost every possible decision impure in their eyes doesn’t mean all compromises end in nefarious liberalness.
It just means you’re a angry fringer.
Great comment!
Interesting that Kagan only pays homage to such collegiality when she is in the minority on the Court. She never mentioned it during the 8 years in which there were 4 liberal Justices and a swing Justice.
New Justices speaking out is a rarer thing, of course. And we’ve had some revelations about the Justices that make comity more of a question.
But sure, weave your double standards, not like you were going to come out any other way.
Ketanji Brown Jackson voted with the majority on the J6 case. The left isn’t jumping on her as a traitor. The right is wound a lot more tightly, and y’all find any movement to be a leftist influence game.
Pretty cool when you find the exception that proves the rule, innit?
Way to shrug off a counterexample; I can see you’re not interested in any facts you didn’t make yourself.
A single” counterexample” isn’t data. It’s an anecdote.
I literally said “ALMOST always goes one way”. In case you’re not too keen on the English language, my comment implies that there are (at least one) counterexamples. Your comment was quite unnecessary.
Of course, you didn’t address the substance of my comment, which is that almost every unanimous decision on the court is a result of the conservative justices moving to join the liberal justices on an issue, and not the reverse. This is, of course, not debatable. So you simply choose not to address it, and hurl ad homs instead.
True intellectual courage.
This is, of course, not debatable.
You’re right, but not for the reasons you think.
Nope. It is exactly the reasons I think.
You’ll quote the exceptional case where it is the reverse. But of course, I did say “almost”.
I’ll make it even less debatable. It’s the “squeakers” (5-4 and 6-3 liberal decisions) where this is made most obvious. Kavanaugh, Barrett and Gorsuch are much closer to swing justices than they are conservative justices.
And we ALL know it’s true. But we’ll fake like the liberal justices actually have an open mind and often cross the aisle, without evidence.
Lol. You flipped from unanimous decisions, which is too obviously stupid to be debatable, to squeakers, which is even stupider. Because of the makeup of the court, it’s almost impossible to even have a “conservative squeaker” that involves liberal votes. You really are a looney toon.
Which is why I defined them as liberal decisions. You can see it right there in my comment.
It’s not flipping. Both are true, but the “squeakers” are a much more obvious example of the same point.
And at any rate, you’re trying to obfuscate something that is almost dogmatic at this point – liberal justices vote in lockstep at a much higher rate than conservative justices.
Denying this obvious reality is absurd, but I’ll leave you to your semantics, if that is what you prefer.
Josh Blackman continues to be petty:
Namely, President Biden wrote a pointless op-ed and Senator Schumer introduced a nuclear bill.
It continues not to be “pointless” for President Biden to argue the current Supreme Court has various problems & to offer multiple solutions, including one involving an amendment instead of the bill [which has no shot at passing] JB found so offensive.
How much longer until Leonard Leo must make another payment to South Texas College of Law Houston to enable Josh Blackman to continue to call himself a law professor?
Josh Blackman in a linked discussion says one “bipartisan reform” he supports is limits on book deals. He also tosses a bit about the “insinuation that [Thomas] is profiting off his position.”
He is not talking about the book deals. My stance there is there should be clear rules for disclosure, recusal, and a limit on out-of-court profits is appropriate. I also think book deals value the public, including in a First Amendment sense, more than trips on airplanes. These interviews included.
I think interview transcripts and video of appearances when possible should be available on the SCOTUS website.
As to value to book publishers, book deals have various values, including ideological, and the advancing an overall brand like if a bookstore sold a popular author and people came in for other books.
“Trust me, if we had an actual MAGA Court, things would look very different.” Strawman. The charge is that it’s a Federalist Society Court.
It’s a Bush Republican court…Trump got tricked into appointing Bush loyalists.
One of Blackman’s more interesting comments is his statement that many people, including himself, made some “terrible decisions” during the pandemic. Maybe he’ll share some of those decisions with us. Did he, for example, have a bad reaction to the vaccine or the boosters? Did he develop breathing problems caused by wearing a mask? Was he traumatized by social-distancing and/or isolation? Was he forced to forgo speaking engagements and other junkets? Did he have to miss too many appointments with his barber?
Covid was a conspiracy concocted by Big Mask to sell masks!!! Worse than invading Iraq which was concocted by Big Oil to steal Iraqi oil!!!
Hear hear!!
Down with Big Mask.
From the surrounding context, I’m thinking he means he deferred to the opinions of “self-professed ‘experts'” too much. This could refer to a huge range of things, from “maybe we shouldn’t have shut down large sections of the economy” to “maybe we shouldn’t have spent trillions of dollars in stimulus” to your rather petty example of “maybe he missed too many appointments.” Does anyone recall what he wrote about deference to experts during the covid era?
“and if the circuit courts are in agreement, there’s very little reason for us to take a case, unless it’s of extraordinary importance.”
God, that’s an obscene position to take. How about if it’s only modestly important, but the circuit courts are united in being wrong? Once they agree to be wrong, that’s it, suddenly there’s no importance in correcting an error?
Their being wrong has to be enough to make a case important, because the people of the United States are entitled to the judiciary getting it right.
Now, maybe you can argue prudentially that if the circuits are united on something, they’re probably right. But that can only be a default assumption, it has to be rebuttable. Because here’s their oath:
““I, _________, do solemnly swear (or affirm) that I will administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent upon me as _________ under the Constitution and laws of the United States; and that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I
will well and faithfully discharge the duties of the office on which I am about to enter. So help me God.”
See anything in there about swearing to leave consensus undisturbed?
Come on, Brett. Stare decisis! Latin for “it’s alright if it’s clearly wrong, so long as it’s not too important or it’s been wrong for long enough.”
And, “Magically, I think in this country there are only about 60 or 70 cases. You could argue a little bit more, a little bit less, but there aren’t thousands of them. They’re very few in number.”
There’s nothing magical about it: You get to chose your workload, and you have, collectively, decided to work part time.
It is a full time job, I am sure. And then some.
Then how do they find the time to write books?
I think I would rather spend an evening with Souter reading by his fire than any time with Goresuck—what a loser!!
Just like his mother.
If one were not open-minded and persuadable, then perhaps the collegial thing to do would be to say so to your potential conversant. Why waste your time and his/her time in pointless disagreements when what you both actually want is to talk about the Sox and the Yanks? Perhaps Scalia and Ginsburg worked out some kind of agreement whereby both or neither of them enjoyed each other’s company while avoiding, as families often do, such topics as money, religion, sex, and politics.
About the books: No one with a brain would contend that the Justices do not have the same rights to speak and write as the rest of us. But do the Justices necessarily have the right to collect fees and royalties while in office? We require President-elects to put much of their business affairs in escrow while they are in office (of course this requirement is met only by those who believe in that and also in the principle of ill-gotten gains).
I hear you say, “What about lifetime appointment? Are you suggesting that the Justices should have to keep their hands off the money they are due until they die?” Not at all. If I were a sitting Justice and author of a huge bestseller, I might well consider retiring while still alive if, for example, my family needed a lot of money in a hurry. No one (as far as I know) is holding a gun to my head and forcing me to remain on the bench. Or maybe my local bookie would do that to keep the vig piling up higher and higher. I have no relevant experience with loan sharks; while I was in graduate school we lived on my teaching assistant’s pay and WIC, preferring to avoid taking out loans of any kind.
No one (as far as I know) is holding a gun to my head and forcing me to remain on the bench.
There’s a one-in-nine chance that Harlan Crow is holding that gun to your head.
It’s interesting to note that your sharpest rhetorical whip is saved for the black male, and you really seem to enjoy whipping the black one over and over.
That’s weird.
“Sharpest” whip? Now I’m curious what you imagine a whip to be, and what process one would use to sharpen it.
“We require President-elects to put much of their business affairs in escrow while they are in office”
No we don’t
I’ve yet to see any indication that a conservative Justice has flipped a liberal member of the court to reach a conservative outcome. Flipping is not ambidextrous–it only works on the left.
Apparently Josh thinks that some unfairness is going on.
RE: “Justice Kagan flipped Justice Barrett in several cases. I’ve yet to see any indication that a conservative Justice has flipped a liberal member of the court to reach a conservative outcome. Flipping is not ambidextrous–it only works on the left.”
Or maybe flipping only occurs when the flipp-er is part of a minority of justices, and needs to flip the flipp-ee in order to get the Court to rule her way.
Justice Gorsuch also agreed to a Fox News interview.
He apparently is limiting the interview invitations to right-wingers. Newsmax, National Review, maybe Stormfront or FreeRepublic, and he’ll call it a day?
Lololol. Can you point to instances of the liberal Justices doing an interview with right-wing media? I’ll wait.
“So many of us (present company included) made some terrible decisions.” I’d be interested in the specific decisions you regret. Hopefully living to tell the tale isn’t one of them …
He’s thinking about all his missed opportunities to performatively not wear a mask, asshole-signaling being his most favorite pastime.
As compared to all the virtue-signalers who wore non-N95 masks that had very low efficacy even when donned properly and replaced after each use, which they failed to do?
As any epidemiologist knows, very low efficacy is still extremely valuable in a pandemic.
Something about MAGA brains makes them too stupid to grasp this simple point.
Rep. Jaime Raskin expressed his displeasure with the Court today. He insinuated that even should Trump win in November, Congress would refuse to certify him as President. That would be interesting.
Raskin in speaking of SCOTUS:
“And the greatest example going on right now before our very eyes is Section 3 of the Fourteenth Amendment, which they’re just disappearing with a magic wand, as if it doesn’t exist, even though it could not be clearer what it’s stating. And so they want to kick it to Congress, so it’s going to be up to us on January 6, 2025, to tell the rampaging Trump mobs that he’s disqualified. And then we need bodyguards for everybody, and civil war conditions, all because the nine justices — not all of them, but these justices who have not many cases to look at every year, not that much work to do, a huge staff, great protection — simply do not want to do their job and interpret what the great Fourteenth Amendment means.”
Should he do that, a red dot should soon appear in the middle of his head.
Raskin predicted you’d say that, but still… why? According to the Constitution, Trump can’t be President. The only reason he still might be, according to Trump’s own SCOTUS, is that Congress fell down on the job and failed to provide a mechanism for actually implementing that part of the Constitution. Yes, I agree, pretty fucking stupid, but, that’s what they said.
But that means… Congress could decide to implement it.
He clearly can be President.
Meanwhile, Raskin is openly discussing using Maduro tactics to keep the WH with the Democrats.
And you have no issue with it.
If they do it, I hope 1) a riot occurs and 2) anybody doing that does not see Jan. 7, 2025.
I just said I had issues with it. It wouldn’t be necessary if SCOTUS had done its job. They created this stupid situation.
One more reason to vote for Harris I guess.