Thursday, July 06, 2017

Gunner Gorsuch

Gerard N. Magliocca

Linda Greenhouse's op-ed in today's New York Times essentially accuses Justice Gorsuch of being a gunner. A gunner, for those who don't know, is a derogatory term for a first-year law student who acts like a know-it-all and talks nonstop in class.

Is this a fair characterization? Sort of. I think Greenhouse is being too harsh when she calls Justice Gorsuch the President's judicial "avatar." (Though that may have been a title selected by the editor rather than by her.) And I think we can cut Gorsuch some slack--he's new on the job.  Even the most experienced judges find that learning the highways and byways of the Supreme Court takes a few years. Still, so far I do find the new Justice's prose rather grating.

Here is a small example. In his dissent in Pavan v. Smith, Justice Gorsuch says twice that the Court's summary reversal of the Arkansas Supreme Court was inappropriate because the state court reached its decision in good faith. Early on he says that the opinion below "did not in any way seek to defy but rather earnestly engage Obergefell." Then at the end he says that the Arkansas Supreme Court should not reversed summarily "for seeking faithfully to apply, not evade, this Court's mandates."

With respect, these statements are preposterous. Justice Gorsuch has no idea if the Arkansas Supreme Court was "earnestly" or "faithfully" trying to apply Obergefell. What I assume he meant was that the Supreme Court should presume earnestness or faithfulness and thus not use summary reversal as the method of review of a lower court judgment. These, though, are two very different concepts.

Furthermore, a little digging shows that the trial judge in Pavan, who was reversed by the Arkansas Supreme Court, was not so confident in the earnestness and faithfulness of those Justices and said as much. The State Supreme Court then admonished him in their opinion for criticizing them.

My point is that Gorsuch's conclusion was reasonable in saying the case did not warrant summary reversal and should be full briefed and argued. His way of explaining that--pretty imprecise.


Its a derogatory term? Excuse me, there are a few of my former classmates I need to have a word with.

Derogatory? Depends on whether you're a gunner or a gunnee.

Even the most experienced judges find that learning the highways and byways of the Supreme Court takes a few years.

During an early oral argument, he offered the name of a western highway. John Roberts joked "that is that regional diversity people like." Turns out he got the highway wrong & had to correct himself. So, you know, yeah.

Michael Dorf over at Dorf on Law provided a somewhat different opinion on the reasonableness point. But, GM -- a conservative leaning sort if one a bit annoyed at unnecessary inflections -- being turned off a bit is a tad telling. Gorsuch, however, tossed in such rub people the wrong way things repeatedly. Such as "of course" I agree, but ... (implication he doesn't on an important point) etc.

I figure the editor might have applied the title but if he is an "avatar," he is more likely one of VP Pence or the conservatives who might not like Trump but go along for such things like judicial nominees like him.

I haven't really got a lot to say about this, (Whether Gorsuch is a 'gunner' really doesn't matter to me a lot.) but I would like to note that Tushnet's last couple of essays sure do demonstrate why he's my go-to example of scary liberal professors.

Yeah, those liberal professors have so much control over your life compared to, say, the President.

Gee, I had thought that Brett as a 2nd A absolutist would applaud Gorsuch as a "gunner," openly carrying on during orals and in cert dissents.

The Supreme Court is a collaborative institution. It works by consensus.

As a result, the best justices are the ones who can assemble coalitions. If you can't assemble a coalition, you may write some acerbic dissents, but you never get anything done.

However, a lot of conservatives really don't understand the role of the Supreme Court. They think that the Constitution is this thing with a fixed, obvious, plain meaning, and the job of a justice is simple-- apply that plain meaning to the cases. And that doesn't happen because a bunch of liberals and squishes conspire to rewrite the law to fit their own preferences. Thus, they think coalition building on the Court is some sort of betrayal of the Constitution and prefer the Scalias of the world who don't get a lot done in many areas but write a lot of dissents talking about how unprincipled everyone who disagrees with them are.

Gorsuch looks like another one of those.

I don't know if it constitutes a coalition as yet, but Justice Thomas, Justice Alito now joined from time to time by Justice Gorsuch may serve as a "T.A.G. TEAM."

" Thus, they think coalition building on the Court is some sort of betrayal of the Constitution "

Indeed, we do, because if you have to abandon the truth to arrive at a consensus, you are creating an untrue consensus.

I'm not sure opposition to compromise is necessarily a "conservative" thing only, though here we have a more conservative Court.

There is no "the truth" here. The law is not a matter of scientific certainty of that sort. Brett is ironically appealing to some sort of god while voicing atheistic tendencies in other cases. In a span of over two hundred years, it has been shown that there are complicated questions -- the Supreme Court tends to take the ones the divide other judges -- with a range of possible reasonable answers.

The Constitution sets in place a human institution know as the Supreme Court (and lower courts) to decide such questions the best they can, imperfectly by consensus, as human institutions tend to do. This reaches as close to a truth as such imperfection can provide. To the degree there is "a truth" here, it's that.

This is not "abandoning truth." It is, in the real world, using the system the Constitution put in place, a human institution, to obtain the best truth reasonably possible. An originalist would respect that the Founders were realists on such questions, knowing what the institutions they set forth reasonably wrought.

Anyway, Scalia accomplished a lot.

Scalia repeatedly compromised -- he put forth a certain caricature of himself that was more pure than he actually was. And, even to the degree he didn't have as much influence in certain areas as he could have, his technique probably helped the the cause big picture. He was a great motivator for the cause, even specific participants were somewhat more open to compromise than he himself was.

Nonagenarian Carl Reiner's NYTimes Op-Ed encourages octogenarian Justice Kennedy ("just a kid") not to retire, describing his joys of life in his 90s still working. (Reiner mentions that evenings he joins Mel Brooks after a busy day to watch some TV. I remember well - and miss - their 2,000 year old man interviews. Some years back at this Blog - during the Bush/Cheney years - that I wished they had a 250+year old man in routines on the Constitutional Convention, with "I was there" originalism schticks, a Yiddish Benny Franklin.)

By the Bybee [expletives deleted], I enjoyed Brett's Jack Nicholson on compromise: "You can't handle the truth!"

"There is no "the truth" here."

That is, in fact, one of the things which we disagree about.

Is Brett suggesting that reaching a consensus is a result of abandoning the truth? Or are some consensuses true while others are untrue? Might there be consensuses that are partly true, partly untrue? [I'm waxing philosophical as Comcast is down until 12:32 AM.]

The second, Shag. Consensus is just agreement, it's orthogonal to truth.

If you abandon truth to seek instead consensus, truth has no chance of prevailing. If you abandon consensus for truth, you at least preserve the possibility that the truth may, in the end, prevail.

This comment has been removed by the author.

I think there is "truth" as in the best possible interpretation of the law in such and such a case, but "the truth" is not the same thing.

Again, the Constitution sets up human institutions that realize "the truth" is something that we as human beings will only reach imperfectly. If Brett or someone else doesn't like the institutions set up by the Constitution, including as they worked for over two hundred years, that's okay.

But, that's the thing Dilan is aiming at -- the law is made up of hundreds of separate arguments and details. When applied, "the truth" is not going to come all the time. As imperfect humans, there is a limited ability to get it. So, e.g., there is a sense of modesty and belief in things like majority rule in multi-member courts and precedent. The result is the best form of truth possible.

Sometimes, judges still dissent. Compromise is not the highest good here. But, you pick your spots, and other times you get more of the truth than before. The truth isn't being ignored. It prevails, just not as much as some (who very well are wrong sometimes!) would like. And, it prevails more than if people all go their own way because only 70% of the truth is followed or something.

But, "THE TRUTH," like some sort of god, some sort of pure thing, is different.

There certainly can be true statements (also false ones, such as every word spoken by Donald Trump). But those are a narrow category of factual claims. What we're discussing here are interpretive claims. Those don't have true/false values. They're, at best, judgment calls by the interpreter based on logical reasoning from agreed facts, plus some more or less accepted interpretive principles. To say that there's "a" "true" interpretation of Shakespeare would be ... odd. One could say that there are interpretations of Shakespeare which are better supported than others, but using the words "true" and "false" would be a category error.

There are actually interpretative truths too. The age restriction on the Presidency means 35 years from birth, not conception or some other starting point.

But the cases that go up to the Supreme Court rarely involve them. Usually they involve contested meanings, and often they arise in areas where there is quite a lot of precedent. And justices are not supposed to ignore that, both because (1) the Constitution set up a common law system where we would follow precedent and (2) there's a fair chance that the justices who decided those precedents were actually collectively smarter than Antonin Scalia. So you need to defer and not assume you know all the answers.

And you also need to respect the other justices on the Court- because they may be smarter than Scalia is too.

The position of conservatives is pure arrogance and anti-intellectualism- we are so brilliant that we have found this simple formula that everyone else ignored and that all these very smart people are wrong about.

Sorry. The Court works by having 9 smart people cooperate with each other and the many other smart people who came before, to generate a consensus answer to questions that don't necessarily have a right answer. And the justices who think they are the smartest guys in that room are like the poker players who don't know who the fish is.

This comment has been removed by the author.

Let's remember also that the appeals to "interpretive truth" come from the same sources which demonstrate contempt for factual truth -- where the word "truth" really can apply -- by supporting Trump and the lies which he tells and which he and his supporters repeat.

"Contested meanings" is a highly tautological concept; All it means is that somebody has disagreed about the meaning, not that their disagreement is reasonable.

I absolutely agree when it comes to "contested meanings". Also with the need to judge whether someone's disagreement is "reasonable". But that's not at all the same as declaring an interpretation "true" or "false".

This comment has been removed by the author.

I think specialized definitions of "truth" to which it wouldn't apply if you gave a totally asinine interpretation of what a Shakespearean play meant isn't very helpful.

It is more a matter of the complexity of the enterprise and often the fact that the details amount to a compromise of sorts. And, yes, the ways used to formulate and apply the law like the common law system. Finally, even when determining facts, a basic job of a jury, in practice there is some compromise and applying established rules, not starting from scratch each time.

The bad faith of some actors is also noted, but one is not likely to admit to it. These same people accuse others of bad faith. At times, it is because the truth seems so obvious to them, so the only way the other side can't see it is (1) they are ignorant fools and/or (2) bad faith.

Anyway, all of this is not just something lawyers or the law does. In our every day lives, we follow comparable principles. We compromise, accept a strong presumption of existing rules (such as tradition), understand various things are involved in decisions and "the truth" (as in absolute right and wrong) isn't always the be all, end all. Plus, some absolute truth often is very hard to determine, so we are modest about applying it, work toward a more limited compromise on specific things.

And, this doesn't all just involve some sort of big lie.

I think it's possible to reject interpretive reasoning as "flawed" if it (1) uses false factual premises; (2) relies on invalid logical reasoning; or (3) applies interpretive principles in an invalid way (which is hard to do, given the vagueness of those principles). Even here, while I might be happy to call the interpretation asinine or perversely stupid, or some other such term, I wouldn't use the term "true" or "false". To me, those terms are reserved for factual claims.

This comment has been removed by the author.

This comment has been removed by the author.

If Brett reworded his comment and avoided "true," I doubt we wouldn't get to the same basic place -- he would not want judges to reach "asinine or perversely stupid" results. And, we would reply that the system in place doesn't do that, the more modest approach sound for the various reasons offered. "Truth" has a certain purity and assurance quality that changes things somewhat, but don't know how much really.

Also, I'm not really sure "true" and "false," words that have multiple dictionary definitions as compared to "terms" used in logic, are used as narrowly as you might be using them. I gather mini-MF took certain true/false tests under protest.

Anyway, again to the immediate issue. Some judges interpret the First Amendment to determine the rights of Muslims. It is asked: "is it true that it protects prayer to Allah in airports?" This is an interpretation of the text. The question doesn't seem odd to me. And, I am willing to say "yes, it is true." I'm not just, though there is overlap, speaking of the "fact" of the law as is.

But, again, I'm not sure how much it matters. These debates over words to me often are of limited interest but somewhat tedious.

Heh. I just took the tests to be asking "what answer does the author clearly want here?"

Yeah, I'm using "true" and "false" in a pretty technical sense. I think that's justified, but I'm also under no illusions that everyone accepts my usage. Maybe the guy who started this off with "there is no truth here" would agree with me. :)

The best thing I can say about a technical use is that it forces people to justify their interpretations rather than declaring them "Truth". That's how I see the whole process of legal reasoning.


Those who are careful about justifying their interpretations probably are guided more than technical usage of the terms though. But, if it helps, okay.

Post a Comment

Older Posts
Newer Posts