Gorsuch, in First Dissent, Rejects Invitation to 'Tweak' Statute
In writing his first dissent, which came in the first case he heard as a new justice, Neil Gorsuch on Friday told his colleagues what will surely be his governing mantra: "Just follow the words of the statute as written."
June 23, 2017 at 11:03 AM
4 minute read
In writing his first dissent, which came in the first case he heard as a new justice, Neil Gorsuch on Friday told his colleagues what will surely be his governing mantra: “Just follow the words of the statute as written.”
Gorsuch made his maiden outing on April 17 for the oral arguments in Perry v. Merit Systems Protection Board. His questioning of Kirkland & Ellis partner Christopher Landau, who represented a fired federal employee, indicated he wasn't buying Landau's argument and was likely to side with the government.
“We're not asking this court to break any new ground,” Landau told him. Gorsuch rejoined: “No, just to continue to make it up.”
Later, in an exchange with the government's lawyer, Gorsuch delivered a line that he would adopt in principle in his dissent: “Wouldn't it be a lot easier if we just followed the plain text of the statute?”
Although his dissent lacked the alliterative flair of the opening of his first court opinion in Henson v. Santander Consumer USA on June 12, it reconfirmed Gorsuch's claim to being a committed textualist like the justice whom he succeeded—the late Antonin Scalia. The dissent also reflected his willingness to walk step-by-step through his analysis and to criticize his colleagues for their lack of analysis, but with little of the biting tone that was often the Scalia way.
Where Scalia tended to use wit and sarcasm in dissent, Gorsuch showed—at least in this first writing—a tendency to lecture, with perhaps just a hint of sarcasm.
“If a statute needs repair, there's a constitutionally prescribed way to do it,” Gorsuch wrote in Perry. “It's called legislation. To be sure, the demands of bicameralism and presentment are real and the process can be protracted. But the difficulty of making new laws isn't some bug in the constitutional design: it's the point of the design, the better to preserve liberty.”
The Perry case asked the high court to confront where a federal employee should seek judicial review of claims that included both an adverse personnel action and federal discrimination claims. The options: federal district court or the U.S. Court of Appeals for the Federal Circuit. A 7-2 majority, led by Justice Ruth Bader Ginsburg, answered: federal district court.
The statute at the center of the case was, in the words of Justice Samuel Alito Jr. during oral arguments, “incredibly complicated.” So complicated that it prompted Alito to ask: “Who wrote this statute? Somebody who takes pleasure out of pulling the wings off flies?”
In his dissent, Gorsuch, joined by Justice Clarence Thomas, found little complexity.
Gorsuch said the statute “provides clear direction” and the statutory scheme “is plain.” The employee's claims, he concluded, are split between the two courts: civil service claims go to the Federal Circuit, and the district court gets the discrimination ones.
But the majority read precedent and the words differently. As Ginsburg wrote in her majority opinion, and as Justice Elena Kagan interjected during Gorsuch's questioning on April 17: “We announced a clear rule in Kloeckner [v. Solis]: 'Mixed cases shall be filed in district court.'”
Landau's victory in Perry was his second high court win in 24 hours. On Thursday, the justices, voting 9-0, ruled in favor of his client, Divna Maslenjak, a naturalized citizen who was convicted of making a false statement on her naturalization application and stripped of her citizenship.
Writing for the court in Maslenjak v. United States, Kagan rejected the government's argument that any false statement automatically results in the loss of citizenship. Instead, she wrote, the government must prove that the illegal act somehow contributed to the obtaining of citizenship.
Gorsuch, again joined by Thomas, wrote separately to say that while he agreed with the court's decision he would not have gone as far as it did in announcing two new tests for determining causation.
Let the lower courts work out the details first, he suggested, adding, “This court often speaks most wisely when it speaks last.”
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