Big Monday 2017: Here’s Gorsuch!


Burt Likko

Pseudonymous Portlander. Homebrewer. Atheist. Recovering Republican. Recovering Catholic. Recovering divorcé. Editor-in-Chief Emeritus of Ordinary Times. Relapsed Lawyer, admitted to practice law (under his real name) in California and Oregon. On Twitter, to his frequent regret, at @burtlikko. House Likko's Words: Scite Verum. Colite Iusticia. Vivere Con Gaudium.

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17 Responses

  1. Avatar CJColucci says:

    I generally dislike Breyer opinions (though not as much as I dislike Kennedy opinions) both when he’s right and when he’s wrong. So I was surprised to see him write something short and sweet, coming to what seemed to me the right conclusion for a simple and sufficient reason, and then shutting up. In some recent opinions, various Justices have tut-tutted their colleagues about saying or doing more than needs to be done or said to decide the case at hand, but then turn right around and spew when they feel the need to get something off their own chests.Report

    • Avatar Burt Likko in reply to CJColucci says:

      This one, in particular, seems to fall directly into the “You’re just voting this way because you like the result” accusation that originalists love to drop on standard interpretation school members, as happened like between Gorsuch (there he is again) and Breyer: Breyer is pretty candid about the desirability of the policy result influencing his vote and I think the originalists have a point that the Court should not be creating a rule just because, if they had been legislators with a free hand, would have voted for that result in that one circumstance.

      Trinity Lutheran Church presents a very clear example of this: traditional liberals like Breyer are not going to like the principle of this case when it gets applied to school voucher programs one bit. I suppose Breyer, who is smart enough to see this, figures that the Court will just draw a line when that case comes to bar and it won’t matter whether it’s a principled like or not. Lots of Justices seem to get cynical that way later in their careers. Happened to Brennan, happened to Rehnquist.

      Gorsuch can at least maintain the pretense of being principled. Whether the pretense reflects reality is a different matter. Breyer sets that kabuki mask aside, and I don’t like it.Report

      • Avatar CJColucci in reply to Burt Likko says:

        It isn’t easy to be more cynical than I am, but I think you have me beat. As I read Breyer, all he was saying was that if you can send a fire truck to keep the church school from burning down and killing the kids, and everyone seems to agree you can, you can pay for rubber matting in the playground to keep the kids from splitting their skulls when they fall off the monkey bars.
        I have always thought that the Supremes will uphold vouchers anyway, on the theory that — to use NYC examples — if you give money (or its equivalent) to parents who can use it for either Horace Mann or Regis, they, and not the government, are deciding who gets it.Report

      • Avatar Kolohe in reply to Burt Likko says:

        My take is that ol’ footnote 3 is exactly the split between the originalists and the traditionalists. The footnote was written specifically to keep the camel’s nose out of the tent, and the non-concur to keep it breathing on the flap.Report

        • Avatar Burt Likko in reply to Kolohe says:

          Part of what makes John Roberts so very good at what he does is how he does exactly this, and does it with the minimally-disruptive technique of reducing that difference to a single footnote. Chief Rehnquist would more often than not sacrifice an entire subsection of the opinion, and sometimes even the fulcrum of his own reasoning, in his efforts to get to five.Report

  2. Avatar Kolohe says:

    Aw yeah, gettin a sweet lawsplainin fix.Report

  3. Avatar Jaybird says:

    For those of you wondering who Gorsuch has agreed with the most, the answer is “Thomas”.

    (He agrees with Thomas as much as Kagan agrees with Breyer. Which is 100% of the time.)

    Chart here.Report

    • Avatar Stillwater in reply to Jaybird says:

      I recall an NPR segment during the transition where a legal expert was asked his opinion on who Trump would nominate. He mentioned two people with standard conservative bonafides who he thought even democrats would have a hard time objecting to, and then said something like “but I think Gorsuch would be viewed as a fairly radical choice and really raise some hackles. So that’s my guess.”Report

  4. Avatar Michael Cain says:

    There will be a follow-on case from Colorado sometime in the next year or two.

    One of our largest richest school districts has been trying for years to get a scholarship program that allows them to send public funds to private religious schools to support students that live in the district past the state supreme court. The court has tossed them each time based on “plain language” in the state constitution that says no public funds may be given in any manner to a school run by an organization affiliated with a religion.

    For the same reason, religious groups can’t establish charter schools (charter schools in Colorado are funded through the local school district and can’t charge tuition). I expect at least one of the big churches will consider making a run at creating a charter school, being turned down, and then heading to federal court.Report

  5. Avatar Kolohe says:

    You make the call wasn’t beer, it was IBM. (Alcoa fantastic finishes was the better series of spots, for the record)Report

    • Avatar Burt Likko in reply to Kolohe says:

      Ah. Noted. On the one hand, I wish they’d bring it back because I thought the format was good for TV watchers, but on the other hand, we have instant replay now and every network has a at least one ex-ref whose job it is to refsplain good calls and blown calls to death as part of the “guys talking about football” programming that bloats out broadcasts of actual football games to fill the airtime. But that’s really a complaint about a different subject; today I wanted to read tea leaves about Justice Gorsuch.Report

      • Avatar Kolohe in reply to Burt Likko says:

        I provided the commentary I did because I didn’t go to one day of law school, but I did watch football on TV pretty much every Sunday it was on during the 80s. (Unless I was actually at RFK). So I’m just trying to stay in my lane of expertise.


    • Avatar Mike Schilling in reply to Kolohe says:

      There’s also the Saturday Evening Post’s So You Think You Know Jurisprudence?Report

  6. Gorsuch is definitely the new Scalia opinion-wise. Still to be seen if he’s El Nino’s equal in butthurt-screeching.Report

    • Doesn’t look like it. He appears to be every bit the courteous gentleman; his snark and critique are pretty clearly going to be much more indirect and subtle than what Scalia dealt out. Both Roberts and Breyer also are this way. In a way, it feels gray and sedate after so many years of Scalian fireworks. But there’s something to be said for gray and sedate.Report