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Gorsuch Proves His Textualist Chops During First Oral Arguments

Neil Gorsuch participated in his first oral arguments as a Supreme Court justice this morning, in a case involving the judicial review of federal civil service disputes. And if you expected to see a new side of Neil Gorsuch on the bench, well, you might be disappointed.

Gorsuch has claimed, loudly and repeatedly, to be a strict textualist, a judge in the mold of Antonin Scalia. And his questions today remained decidedly within that line of thought, as the new justice returned again and again to the plain language of the statute at issue.

Focusing in on the Plain Language

Justice Gorsuch's first oral arguments weren't in the most exciting case of the term, but they did give him a chance to show the type of justice he might be.

The dispute, Perry v. Merit Systems Protection Board, was a technical one. The Merit Systems Protection Board hears challenges brought by federal employees to adverse employment actions, such as a demotion or termination. Under federal law, an appeal of an administrative MSPB decision usually goes straight to the Federal Circuit. But the challenges the MSPB hears often involve claims of illegal discrimination and other violations of federal law, in addition to civil service claims.

These "mixed cases," the Supreme Court ruled in 2012, must go to a district court for initial judicial review. In Perry, the Court addresses a related issue: When the MSPB disposes of a mixed case because of jurisdictional issues, what is the proper forum for review?

It took Justice Gorsuch only 13 minutes to raise his first question during oral arguments today, a quick, assertive start for a new justice. Everyone agreed, the justice noted, that mixed cases can go to the district court. "Where in the statute is that provided?" the justice asked.

He wasn't simply quizzing Christopher Landua, attorney for the aggrieved Census Bureau worker Anthony Perry. "By what authority," Justice Gorsuch asked, "does a district court ever have the power to hear a civil service claim?"

Landua pointed to Kloeckner, the Court's ruling from 2012, but Justice Gorsuch wasn't interested in the Supreme Court's glossing. "Putting aside Kloeckner," he said, "show me what's in the 'plain language' of the statute itself."

No Fan of "Making It Up"

Justice Gorsuch returned to that textualist focus repeatedly. Of course, this wasn't particularly unusual. During his confirmation hearings, for example Gorsuch said that judges must follow the exact words of the law, even if the results were uncomfortable.

And today's case was heavily focused on the details of the statute, with many justices, not just Justice Gorsuch, dealing with the intricacies, section by section, of the jurisdictional scheme.

But Justice Gorsuch seemed uniquely insistent on the primacy of the text of the statute, particularly in the face of relevant Supreme Court precedent. Landua later referred again to Kloeckner, for example, arguing that "we're not asking this Court to break any new ground."

"No," Justice Gorsuch interjected, "just to continue to make it up."

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