Ready or Not, Gorsuch to Take Supreme Court Bench a Week After OathBy
U.S. Supreme Court hearing arguments in three cases Monday
Gorsuch skipped private court conference last week to prepare
U.S. Supreme Court Justice Neil Gorsuch didn’t have much time to get up to speed on his new job.
Only a week after being sworn in, Gorsuch took the bench for the first time Monday, filling the space next to Justice Sonia Sotomayor to hear arguments in three cases, with another four scheduled to follow later in the week. They include a clash Tuesday over the power of the Securities and Exchange Commission to recoup illegal profits and arguments Wednesday in a closely watched church-state dispute.
The flurry of arguments will offer Gorsuch a fast introduction to his new responsibilities and give the public its first glimpse at how he will conduct himself on the court.
Gorsuch is the first justice to join the court partway through a term since Samuel Alito did it in 2006. Unlike Gorsuch, Alito had three weeks to get ready before his first arguments.
Preparing for arguments is likely to be the easy part for Gorsuch, given his decade on a federal appeals court in Denver, says Alexander "Sasha" Volokh, a professor at Emory University School of Law who served as a law clerk for Sandra Day O’Connor and for Alito during his first term.
"He’s just going to be reading the briefs in the cases, and he knows how to do that," Volokh said.
He’ll have help from the four law clerks he has already hired. All previously clerked for Gorsuch at the appeals court level and two also clerked for other Supreme Court justices, according to a report on the blog abovethelaw.com. He is getting temporary secretarial help until he can make full-time hires, Supreme Court spokeswoman Kathy Arberg said.
More daunting, perhaps, will be the Supreme Court’s unique rhythms and rituals, including the private conferences the justices hold to discuss cases each week when they are in session. The other eight justices held one last Thursday and considered more than 200 requests for a hearing.
Gorsuch could have taken part in that conference but instead decided to focus on preparing for arguments, Arberg said. The court Monday released a 16-page list of orders, mostly rejections of appeals, with a notation saying Gorsuch didn’t take part.
The next conference is Friday. If Gorsuch participates in that one, the cases that could be in front of him include North Carolina’s bid to revive its voter-ID law and an appeal by California residents seeking to carry handguns in public.
When he does start attending conferences, Gorsuch will discover he has some special duties. By tradition, when the justices meet around their conference table, no one else is allowed in the room, and it’s the responsibility of the newest associate justice to answer the door to receive any deliveries or messages.
"That’s just their little hazing ritual for the junior justice," Volokh said.
Going forward, Gorsuch will also be responsible for recording the votes taken during those meetings and transmitting the information to court officials.
Gorsuch’s first case Monday is hardly a blockbuster, posing a procedural question about discrimination claims by federal employees.
Later that morning, he will consider the constitutional requirements when someone wants to intervene in a lawsuit. One of the lawyers who will be arguing is Neal Katyal, who introduced Gorsuch at his confirmation hearing. Katyal’s staunch support for Gorsuch has led some legal ethics experts to wonder whether the justice might recuse himself from the case.
After lunch, the court hears a case that will affect the deadlines for some investor fraud suits in a case involving Lehman Brothers underwriters.
On Tuesday, the court will consider the scope of a favorite tool used by the Securities and Exchange Commission to recoup money from people found to have violated the law. The question is whether the SEC is bound by a five-year statute of limitations when it seeks “disgorgement,” or the return of illegal profits.
The week’s biggest fight looked to be Wednesday’s church-state dispute, though a last-minute change of position by Missouri may undercut the case. At issue is whether the state violated the constitution by refusing to let Trinity Lutheran Church take part in a grant program that pays for playgrounds to be resurfaced using scrap tires.
On Thursday, Missouri’s new governor, Eric Greitens, said the state was changing the policy to make churches eligible for grants, and the Supreme Court has asked the two sides to submit pre-argument letters discussing the impact. The development could prompt the court to throw out the case as no longer presenting an issue that needs to be resolved.
If so, Gorsuch’s first week may prove to be anticlimactic. But at age 49, he is only getting started.