Becoming Justice Gorsuch | 2. The Stolen Seat

where you least expect.

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We will make our ideas, plans and ideas really successful. We are looking forward to our long-term expertise and a detailed partnership. The folks' Geschichten begin by the Commerts Bank, which we talk about. More information on the Commerts Bank.de/effortsgeschichten. Do you remember where you were when you heard the Justice Scalia died?

Of course, I was on vacation in Saint Martin, on the French side with my now husband, and we had just finished dinner, it was later in the day when the news broke. That's my colleague, Mark Joseph Stern. He covers the Supreme Court, personally. I knew he would remember exactly where he was when he learned of Scalia's death.

And Nina Tottenberg, by the way, and Pierre Correspondent, was in the Virgin Islands. This happened during a break when a lot of Supreme Court reporters go on vacation, and Justice is too, Justice Scalia was on a hunting vacation. And I remember it was wild news.

“Antonin Scalia was 79 years old, which, yeah, it's old.”

But no one was expecting him to die. Like Mark says he was on vacation. And one morning, he didn't make it down for breakfast. He had died overnight of a heart attack. Journalists everywhere started scrambling to get the news out.

There was one spot in our room who was actually on the balcony where I could get Wi-Fi. And so I was writing stories and like emailing and stuff, standing on a chair holding my laptop up in the air trying to get the Wi-Fi signal. It was a crazy time. It's a big deal when any Supreme Court justice dies.

But Antonin Scalia was not just any Supreme Court justice. I mean, listen to this guy. In this job, it's garbage in garbage out. If it's a foolish law, you are bound by oath to produce a foolish result. Justice Scalia was larger than life.

He was the intellectual leader of the conservative wing of the court. Scalia was also the man who helped start the new conservative movement that took off while Neil Gorsuch was still in law school. In the early 1980s, when Scalia was a law professor at the University of Chicago,

he became one of the first faculty members to advise the then-nacent federalist society.

He was elevated to the Supreme Court a few years later in 1986. Scalia then toured various law schools, talking about the ideas he was bringing to the Supreme Court. He visited Harvard Law School while Gorsuch was a student there and Scalia's judicial philosophy was a huge influence on Gorsuch, but that isn't surprising. Because as Mark says, Scalia influenced everyone.

Before Scalia joined the court, it would really look at values.

“It would say, what does the freedom of speech mean?”

What does a quality mean? Really, it was trying to think, how do we fit this value of a quality to this modern day problem? This way of reading the law is called intentionalism. Trying to figure out what the intent of laws were as you apply them. Scalia came on the court and he said, no, that is not what we do.

What we do is figure out how people understood this constitutional provision at the time, and we apply that rigidly to the problem that we face today. It's what did the words mean to the people who ratified the Bill of Rights, or who ratified the Constitution? As opposed to what people today think it.

As opposed to what people today would like. It's a literal reading of the law, a method known as originalism. So we don't just ask what is a quality. We say what was equal protection understood to mean when the 14th amendment was ratified in 1868. And we just transpose that meaning to the problems that we face today.

No changes. I'm going to level with you. This kind of judicial philosophy stuff is only interesting to lawyers. It's confusing, and it's also boring. I know. I'm sorry.

Unfortunately, we need to understand this to understand gorsage and what he's up to. So stick with me here. This is the easiest way I can break this down. There are two brother philosophies that's Gilea championed. Originalism and textualism.

They're basically the same thing, except originalism is how you read the constitution,

We talk about originalism the most when it comes to scotists,

because they're the ones who are tasked with really deciding what the constitution means. Both ideas instruct that rather than trying to figure out what the people drafting these rules were trying to say, you just go with what they literally wrote down. That's all that matters. Scalias obsession with this way of reading the law made the Supreme Court more conservative

over his nearly 30-year tenure. I mean, think about it.

“If you have to go off of what was written down hundreds of years ago,”

it's not going to be progressive. But after Scalias death, this was all poised to change. It was 2016. Barack Obama was still president. According to the constitution itself, Obama would be the one to pick who would replace Scalia on the bench.

So what was your first thought with Scalia dying and obviously leaving the court?

That we would have a five-to-four liberal majority. It really seemed unthinkable that the Republican Senate would completely block Obama appoint you to the seat. It seemed unthinkable until it wasn't. This is Sloburn becoming Justice Gorsuch.

I'm your host, Susan Matthews. Last episode, we met a young Neil Gorsuch, child of divorced parents with opposing political views. We learned that Neil was probably deeply influenced by how he saw his mother treated by congressional Democrats in DC.

And how, as a young conservative in the 1980s, he learned how to argue with liberals as a student at Columbia.

In this episode, we'll learn how Neil got to the national stage and all the norms that he

broke along the way. We'll talk about how his perfectly practiced civility kept him above the partisan fright, and we'll try to understand how he uses his power on the highest court in the land. This is episode two, The Stolen Seed. Side more than 150-year-olds believe the co-majards

“can be trusted and funded by the most important financial decisions.”

If you're interested, please leave your family or financial future plans. As we do with their ideas, we'll learn about the real success of our long-term expertise and a detailed partnership. The success begins with the co-majards bank. Let's talk about it.

More information about the co-majards bank.de/efforts. Business is in flux. AI and geopolitics are reshaping industries. And competitors are emerging where you least expect. We are London Business School, where rigorous thinking meets real-world impact.

We accelerate transformation for organisations, preparing leaders to navigate complexity with confidence. Not just to lead, but to define the future. London Business School. See what we can do for your organisation at London.edu.

“The Supreme Court just gutted a key provision of the voting rights act, nothing to see here,”

just the systematic dismantling of our democracy. And it won't stop there. This year's Scotestocket is full of incredibly important cases. The justices will decide whether Trump can fire officials, long-considered independent, the future of birthright citizenship,

whether the government can ban transathletes from playing school sports, and if mail-in ballots will continue to be legal in future elections. And that is only a fraction of the list. It's a lot, a lot, a lot. But don't worry, our podcast, Strix scrutiny, is here to break it all down, sharp analysis, and just the right amount of shape.

New episodes drop every Monday, listen wherever you get your podcast or watch us on YouTube. When Antonin's Clea died suddenly in February of 2016, Barack Obama was tasked with replacing him on the bench. In March of that year, he nominated Merrick Garland to be the next Supreme Court Justice. The men and women who sit on the Supreme Court are the final arbiters of American law. They safeguard our rights. So this is not a

responsibility that I take lightly. But Republicans were in the majority in the Senate, led by Mitch McConnell, and the majority controls the Senate's judiciary committee. So, they simply refuse to allow Obama's nominee to start the confirmation process. They just stumbled for months. Last night, Senate Majority Leader Mitch McConnell said it would be a waste of time to meet nominee Merrick Garland and insisted that Congress must

wait until Americans elect a new president. It will not be voting on this nominee. The next

McConnell's strategy of a total blockade, play out. My colleague, Mark Joseph Stern,

“was back from vacation and watching and disbelief as this unfolded in Washington.”

Let me, it was unthinkable at the time. This had never been done before. To say,

we're just going to leave this seat open indefinitely, because we don't think the current president has any right to fill it. And that was shocking. Republicans, ostensible argument for the blockade, was that a new justice should not be added to the court in an election year. This was basically an excuse they used as cover to do whatever they wanted, because when Scalia died, Obama still had almost an entire year left in office.

Still, by the fall of 2016, it seemed like it might be fine for Democrats to just wait it out. Conventional wisdom said Hillary Clinton would win the election easily. So, even if Obama couldn't fill Scalia's seat, seems like Hillary would have the opportunity. We all know how that turned out. I'm like anything we've seen in a real-life, a surreal, a stunning election. We've been offset in an American political history. President elect of the United States of America.

We're going to get to work immediately for the American people. You'll be so proud. At what point, on election night, did you realize when Donald Trump was winning what this meant

for the court? Immediately, it was my first thought.

And so, in the wake of one of the biggest election upsets in history, there was another upset, too. Liberals went from thinking they were about to finally secure an advantage on the court to realizing conservatives had locked in their dominance for the foreseeable future. This turned out to be just the beginning of a swing toward a conservative supermajority at the high court, a shift with profound implications for the future of America.

In the aftermath of the Senate blockade of Obama's nominee, now Trump would get to select his own nominee. He'd been preparing for this task all campaign season. Judges all across the country had been auditioning to be Trump's pick. They did this by demonstrating just how conservative their rulings could be. One case, in particular, would prove to be a perfect opportunity, a case about a trucker who had faced an impossible situation on a freezing night in Illinois.

It's the only case I ever argued in the 10th Circuit. That's Robert Fetter. He's a labor lawyer. And in the summer of 2016, he was tasked with arguing this case in front of the 10th Circuit. His client was Alphan's Madden. The trucker we told you about in the previous episode, who had been fired from his job all the way back in 2009 for abandoning his trailer because he thought he might freeze to death. Madden and Fetter had been on a winning streak,

but the trucking company kept appealing. Eventually, it got all the way to the 10th Circuit. When you go to a circuit court to argue, you're on a dock at that may include eight cases of a whole bunch and they just go in successive order. And you just know you got to show up in that clock. You don't know what order it's going to be once you get there at night at clock. But when you get there, you learn. And I learned that we were the last one of that morning.

So I got to watch the other arguments. There were three judges from the 10th Circuit

“hearing arguments that day. One of them was Neil Gorsuch. And the other arguments, I don't remember”

there being anything overly controversial. I remember Judge Gorsuch being overly active in any of

those cases. Then came time for the frozen trucker case. Bob's co-council was the first to speak.

And suddenly, the energy in the courtroom changed. Austin, the judges have a particular decorum that will allow you to get some of your argument out. Judge Gorsuch did not allow that attorney to ever get his argument in. Because as he was answering any question that Judge Gorsuch had asked, he was immediately interrupting him and asking another question. Judge Gorsuch was cutting off Fetter too. Fetter described starting to answer one of the judges' questions saying, "Well."

And that was just enough of a pause. He said, "Well, nothing. I'm right." Oh, my God, that was well.

“How unusual is that? Had you ever had that situation before with a circuit court judge?”

No, he was pretty hostile. Still, even after how aggressive Gorsuch had been during arguments, the other two judges ruled in Madden's favor. Fetter and Madden won the case. Like we told you last episode, Neil Gorsuch descended. But it wasn't just Gorsuch's reasoning that surprised Robert Fetter. It's the way he wrote his decision.

elementary level on these issues there in Gorton, philosophically.

I've read the dissent and I have to agree. Gorsuch restates again and again, which words are in the statute and which aren't. He quotes the dictionary at the reader. His tone is weirdly rude. One law professor described it as arrogant and callously written. It would be months before Fetter would realize one of the reasons Neil Gorsuch might have taken such a specific approach in his dissent. I'm sitting in my living room before dinner with my

family and I'm working on something on my computer and in the background is the news and something comes out and says Trump came out with this nomination for Neil Gorsuch. Didn't ring a bell.

At this point, it was January of 2017. And I thought, oh, great. Well, let's see who this guy is.

And in the intro, I get an email from the Michigan Democratic Party. And let's see what the Michigan Democratic Party is say about this guy, right? And I read the email and it goes through a couple specific cases that he had and then it says that he descended in a case where a truck driver nearly froze into. Fetter had honestly kind of forgotten about it. They'd won the case that summer and he'd moved on.

When you're a practicing lawyer, you know, you're on to the next thing. I mean, I have it any time. I have another, you know, 40 cases that are going on that I'm working through litigating those issues and you're just on to the next issue. Now it was all coming back to him. Then I was like, oh, that's my case. I was like, I thought something that I can't say, but I shouldn't say, but you can say it.

In my mind, I thought, oh, it's that asshole. And not just, oh, it's that asshole, but also, oh,

“that's why he wrote such a pedantic absurd descent in my case. When Gorset was ruling in the”

frozen trucker case, he didn't try to think about the trucker's point of view or what the Department of Labor wants for workers. He just looked at what the actual text said and was like, well, it says he could have refused to drive the truck. But he drove the truck, so that's it. This was a wonderful case to show that you believe in textualism. There's the boring legal philosophy again. Textualism is how Neil Gorset got to such an absurd

on its face ruling. He looked only at the words on the page and ignored everything else. There may have been a reason why Neil Gorset wanted to prove he was such a strict textualist. In the lead-up to the 2016 election, Trump had to convince a lot of establishment Republicans to get behind his run for president. One way he did this was by promising to appoint a Supreme Court justice just like Antonin Sglia. So he released lists of who he might

appoint to show how conservative they were. Back in the spring, when Trump released his first list,

Gorset wasn't on it. And after the decision comes out, Neil Gorset now shows he's such a great textualist that he's willing to screw over this worker who nearly died and have no sympathy whatsoever and he is able to use that to get on to the next list for possible candidates to the Supreme Court. Gorset has maintained that he wasn't auditioning for scotists.

“I remember very clearly sitting in the summer of 2016 with a friend and lunch and he said,”

"Oh, it's such a pity your name's not on this list." And I said, "Oh, gosh, don't. I'm so happy in Colorado. Leave me alone. I'm fine." Just one month after the frozen trucker case, Donald Trump's campaign put out a revised list of who he would consider for scotists if he were to win the presidency. This time, Neil Gorset made the cut. We know what happens after that. Donald Trump is elected,

Mitch McConnell's blockade pays off. Neil Gorset is nominated to Antonin Scalia's seat. I remember some email and some social media kind of blowing up that was connected to the friends I had at Columbia. Remember Liz Plushet? She was Neil Gorset's freshman floormate at Columbia. At least in the Columbia community, there was a lot of my cohort and classmates.

“And oh, like, isn't this a people who are blowing up and saying, isn't this great?”

But Liz did not think it was great. And I was very clear and almost visceral. And I said, why is this great? Because because he has a degree from the same place you have a degree from, and everybody didn't have an answer. They just was like, "Yeah, he's one of our own goliens." And it was really weird. School pride thing as if everybody was dismissing what Neil

him when he was young, knew he had an agenda. Let's zoom out a little bit here. We need to talk about

“what this agenda was and how it aligned with what Republicans were up to. Remember what we talked”

about in our last episode? Back in the 1980s, conservatives had basically had it with the Supreme

Court. Liberals were getting all of these favorable rulings, thanks to the civil rights movement and the women's movement. The last straw was Rovey Wade. It was that ruling that made conservative leaders decide to do something about the courts. Today, we think of abortion as one of the most politically charged topics out there, incredibly split across partisan lines. But historically, it wasn't like this. Conservatives made it a partisan issue because they realized it would help

them take power back in the courts. They used extremely graphic language and political messaging to get Republicans activated about this, and it worked. It created a lot of single issue voters. Meanwhile, Democrats were still trying to compromise. After Antonin Scalia's death, Obama picked Merrick Garland because he was such a moderate judge. He's not someone who would radically change the court. He would play by the rules. To find someone who just about everyone not only respects

but genuinely likes. That is rare. Merrick Garland never stood a chance. Republicans didn't care

“if the nominee would play by the rules. Their criteria was very different. Remember,”

they were looking to see someone who would overturn Rovey Wade. They felt that with corsage, they had that guy. I mean, Liz Flushack could have told them as much, but they didn't want to make it so obvious that this was what they were up to. Because even though they'd made this a huge cause in their world, it wasn't popular with Americans overall. So they needed someone who could perform the role of a mild mannered judge who was just here to call balls and strikes.

A Neil Gorsuch was perfect for that. This is from his opening statement on the first day of his confirmation hearing. Mr. Chairman, these days we sometimes hear judges cynically describe his politicians and robes. Seeking to enforce their own politics rather than striving to apply the law impartially. But if I thought that were true, I'd hang up the robe. Remember how Liz said that even in college, Neil Gorsuch seemed like he was 40 years old? Well, by the time he was

being nominated to the Supreme Court, he actually was in his 40s. He still had his good hair, only now it was silver, lending him gravitas. And he still sounded like Jimmy Stewart. Only now, that gosh-galley politeness would be the perfect way to deflect from the tough questions he'd be asked during his confirmation hearing. All that emotionless debating, it was about to pay off. Neil Gorsuch played his part perfectly during the confirmation hearings. He was buttoned up and

composed and ready with perfect answers to each question. Here he is with Senator Lindsey Graham. Did you ever met President Trump personally? Not until my interview. In that interview,

“did he ever ask you to overrule Roby Wade? No, Senator. What would he have done if he had asked?”

Senator, I would have walked out the door. It's not what judges do. Senator Al Franken tried to throw Gorsuch off his game. He had some questions about Merrick Garland. I think you're allowed to talk about what happened to the last guy. It was nominated in your position. You're allowed to say something without getting involved in politics. You can express an opinion on this. Senator, I appreciate the invitation, but I know the other side

has their views of this and your side has your views of it. That by definition is politics. Okay. And Senator Judges have to stay outside of politics. Throughout his confirmation hearing, Neil Gorsuch deployed his folksy demeanor with this kind of perfectly pitched disbelief that there could be any controversy surrounding him and this nomination. I tried to live under a shell during the campaign season.

Watch baseball and football. Go about my business. But Neil Gorsuch doesn't live under a shell. As soon as he was nominated, he knew what he had to do. We do know that his first call after being nominated was to Merrick Garland. He allegedly had real respect for Merrick Garland.

And so I guess he tried to sue his feelings or something. This is sort of incredible to me.

But he knew exactly what was happening. He knew he was taking Merrick Garland's seat.

“This is the exact same pattern that happened with the seat overall. First, Republicans used”

such strong political power to muscle their guy in. And then, that guy spent his entire confirmation hearing saying, "Well, gosh, golly, judges aren't political. We just read the law." Neil Gorsuch is the person who taught me that civility is not the end goal. It is often masking something and behaviors and attitudes that are very uncivil. In the end, all this pageantry and performed civility didn't really matter. Neil Gorsuch

didn't have to convince anyone to vote for him during the confirmation hearings.

That's because Senate Republicans had one more trick up their sleeves to make sure they got

their guy on the court. They changed the rules. Normally, it takes 60 votes to confirm a judge to scotus. But Republicans knew they weren't going to get enough Democrats to collaborate with them, not after what they'd done to Merrick Garland. So they eliminated that standard. Neil Gorsuch was confirmed with 54 votes out of 100. The nays are 45. The nomination of Neil M. Gorsuch of Colorado to be an associate justice

of the Supreme Court of the United States is confirmed. We'll be right back. Business is in flux. AI and geopolitics are reshaping industries and competitors are emerging where you least expect. We are London Business School, where rigorous thinking meets real-world impact. We accelerate transformation for organisations, preparing leaders to navigate complexity

with confidence, not just to lead, but to define the future. London Business School. See what we can do for your organisation. At London, they're EDU. There are more than 150 years of business, the commercial bank can be found and are able to find financial decisions.

“If you want to know more about your company, your family, or your financial plans.”

We'll make sure to take care of your ideas, plans and opinions of real success. The success of our long-term expertise and a detailed partnership is based on. At the beginning of the commercial bank, we'll discuss more about our commercial bank.de/efforts. Supreme Court cases are all heard in the same room at one first street in Washington.

If you've never been there, the room is spectacular.

It has these beautiful, deep red and black marble floors and honey-colored marble columns. Just beyond those columns are thick, scarlet curtains. The nine justices emerge from behind them then sit at an angled mahogany bench. They sit by seniority, the chief in the middle. When Neil Gorsuch joined the court, he was an associate justice and the newest, so he sat at the end of the bench during oral arguments. Historically, freshman justices acted with a certain

difference. Here's my colleague, Mark Joseph Stern again. New justices like they showed some humility. They were still settling into the place. They didn't have the wisdom of justices who had served for years and so they often were a little bit quieter, a little bit less confrontational. That was not just a score such. It would be a lot easier if we just followed the plain text of the statute. What am I missing? From the start, he was a pretty active and aggressive

“questioner from the bench. I think it's fairly red. It's not elegantly drafted, but I think it's”

fairly red to allow that and let me give you a couple of reasons for that. Let me give you a couple of reasons for that. Yes, not reasons were in the language. Absolutely. So we start with a general rule that says, another thing about Justice Gorsuch, he was very direct when he thought someone should be appealing to Congress, not the court. You know, the Supreme Court is directly across from the US Capitol and he'll tell a lawyer arguing beforehand, it sounds like your arguments are better addressed

across the streets. You know, go to the Capitol and lobby them. We're not the ones who should be fixing this law. He had put on a display of humility during the confirmation hearing. But by the time he got to the bench, that quickly curled into more of a no-it-all attitude. And why not? Once a Justice gets to the Supreme Court, they have the jobs for life. People like Mark who have to read everything the Justice is right. Immediately started to notice what a Gorsuch

opinion sounded like. It was clunky and it was pretentious and it included all these weird

which was the unanimous decision, was about this law called the fair. That collection practices

“act, which is about like CD collection practices and it began with this sentence. Disruptive”

dinnertime calls, downright deceit, and more besides Drew Congress's eye to the debt collection industry. And I'm just like dude, like you don't have to pretend like you're writing a children's storybook about the fair debt collection practices act. Luckily for the rest of us, Mark gets paid to read these decisions. So we don't have to. And it was like, oh God, this guy is just going to be unbearable to read. I was like reconsidering, do I even want this job if I'm going to have to

spend the rest of my life reading this guy's awful prose? It was not good. Mark was not the only one who noticed. Soon, complaints about the newest justices writing were all over Twitter, with the hashtag Gorsuch style. It was even covered by the New York Times. Fortunately,

it was short-lived. I'm sure he would never admit that he was influenced by the press or by all

the mockery of Gorsuch style, but it did seem like he calmed down and started to hone his writing and it became a lot better. When he settled down, Neil Gorsuch started to establish himself.

“Remember, he had big shoes to fill. He was in Antonin Scalia's seat. And at first,”

it seemed like he was showing Republicans that all their efforts to get him that seat were paying off. But after his first few terms, he started to show just how seriously he took his dedication to originalism and textualism. You'd think that could only be positive for conservatives, but that's not how it turned out. One of the first cases that shows this unexpected side of Justice Gorsuch was decided in 2020. The case is called Bostock versus Clayton County.

I asked Mark to walk us through it since he's the expert here. So Bostock was actually a consolidation of several cases brought by employees who had been fired because they were gay or transgender. And they argued that those firings were illegal under Title VII of the Civil Rights Act of 1964, which prohibits most employers from firing someone because of sex. That's the language here, because of sex. The question at the heart of Bostock was who Title VII of the Civil Rights Act

protected? On the one hand, when it had been written back in 1964, Congress was mainly looking to protect women. There was no discussion of gay or transgender workers. The lower courts have really split on this. You had some courts that said, look, this is about whether you're a man or a woman. And really, Congress was trying to protect women from being fired because they're women. And so this should not be expanded to gay and transgender employees because that's just not what

Congress was thinking. But then there was another way of looking at it. You had other courts saying, no, if you really sort of just isolate the text and apply it, then firing someone because their gay is firing them because of their sex because, you know, you're saying, oh, you're a man, you're not allowed to marry a man. But if they were a woman, you wouldn't have any problem with them marrying a man. So the problem there is their sex. And if you change their sex,

then you wouldn't fire them. So that's discrimination because of sex. Very similar thing with transgender employees. And some of these courts said that is discrimination because of sex that falls under Title VII. Looking at the text in this way is what originalism and textualism call for. And as we know, Gorsuch is an originalist and a textualist. The question was, would Neil Gorsuch be so committed to his legal theory when the outcome

was a liberal one? It turned out that he would. In this decision, in Boston, by a 6 to 3 vote with Gorsuch and the Chief Justice joining the then four liberals, Gorsuch writes that, yes, Title VII protects gay and transgender employees that it is impossible to discriminate against someone for being gay or transgender because of sex that that act of discrimination

always and inherently takes their sex into account. And that was, I mean, the biggest victory

for gay people since marriage equality. And I still think the biggest victory for transgender

“Americans and all of Supreme Court history. What's the reaction to Justice Gorsuch's opinion?”

Absolute fury on the right. Nobody saw the Gorsuch would join the majority on this. This is judicial activism. The bargain that has been offered for years now is a bad one. Senator Josh Hollig gave this speech where he condemned the decision and Gorsuch and was like, we need to totally reevaluate our approach to judicial nominees on the right because this was a betrayal. We're supposed to keep our mouths shut because maybe we'll get a judge out of the deal.

It's not time for religious conservatives to shut up. Now, it's time for religious conservatives

viewing this as a just a Pauling sop to the lefty culture wars. Republicans had spent so much effort

and political capital seeding their guy. And then he was the one offering the biggest victory for gay people since marriage equality. Why do you think Justice Gorsuch ruled this way in

“Bostock? I mean, I think that it has a lot of similarities to the frozen trucker case. It just”

comes out on a different side of the political spectrum. Gorsuch took the same approach. Just look at the words on the page. Like in the frozen trucker case, Gorsuch was saying, let's not look at this entire statute or the legislative history or what this federal agency says or what that agency says. Let's just take these words out. And in Bostock, he says, again, let's not take in

all this other context that may or may not bear on the meaning. Let's not try to figure out what

Congress was intending maybe on our subjective guests. Let's not defer to some agency or whatever. Let's just take out the words discrimination because of sex and ask what those mean. The word is the law. The law is the word and nothing else matters. So I do think it was a consistent approach there. Not only was he consistent in his approach to reading the law with Bostock, Mark thinks Justice Gorsuch actually enjoyed being able to use textualism to arrive at a result

“that was so liberal coded. I think he really liked it. And I think he relished this opportunity to”

show the whole world like I'm super, super committed to this approach. And even if it takes me pretty far to the left, I'm going to follow it wherever it goes. And what has his record been on Gay and Transwrites? Not so good, actually. I suspect he did not anticipate the backlash of Bostock. This was a demonstration of a commitment to illegal philosophy. It was not a show of support for Gay and Transwrites. One thing that likely affected the reaction to Bostock and then Gorsuch's

reaction to that reaction is that Gay and Transwrites have become a much more volatile political football since 2020. Back then, it seemed like protections like this would only continue to grow. But now, the culture wars have zeroed in on transwrites as the new threat to conservative values. This term, the Supreme Court has taken it upon themselves to decide whether trans women can play women's sports. So how will Neil Gorsuch rule? On the one hand, the legal issues demand similar reasoning

as Bostock. If Justice Gorsuch wants to show his consistency and his commitment to textualism and originalism, he should allow trans women to play women's sports. But he's already shown indications that he won't. In last year's big case about transgender rights, which was about healthcare access, he ruled against the rights of trans people. But he didn't explain why he was ruling against them. He just signed his name to the Chief Justice's opinion that allowed states to

restrict access to healthcare. So Justice Gorsuch could go in either direction. But one factor that probably isn't weighing to heavily on him is what Donald Trump wants him to do. In the past few years, Gorsuch and Trump have sort of split. Mark says that's because Trump's interests have changed.

“I think what's so interesting in this moment is that in Trump's first term, it was all about”

deregulation and destroying the administrative state. So Gorsuch was pretty aligned with Trump. But now, Trump isn't so eager in dismantling the administrative state. He wants to co-opt it for his own purposes. He wants to tell CBP and the Department of Commerce cook up some pretext for me to slap billions of dollars on tariffs on imported goods. And let's see if we can get away

with that his desires as president and second term are sometimes kind of contradictory to Gorsuch's

jurisprudence. You might have heard that Neil Gorsuch ruled against Trump in the tariffs case. It made Trump really mad. I bet it made Gorsuch pretty happy. He loves to defend the constitution and he loves to prove that he's not a partisan. And so the tariffs was a great test case because Gorsuch was able to come down in a kind of thundering way and say no, no, no, I didn't let Biden get away with this. I'm not going to let Trump get away with this.

All libertarians love to do this. And if I really had to pin down Neil Gorsuch's politics, that's where I'd put him. He holds many beliefs that I do not. He holds many views about the law that I think are quite wrong. But I do think he holds real views and principles like he's not just a partisan. He actually does have a coherent judicial philosophy that sometimes

causes and Republican presidents and Republican politicians. He does have partisan instincts

to my mind, but they don't always win out. Neil Gorsuch wants to prove that he's not a partisan

“hack. That's particularly important right now because Gotus is having a crisis in credibility.”

There are a lot of reasons for this. Part of it is the unpopular rulings that they've been handing down. The part of it is how naked the grabs for power on the court have been. I mean, think about Trump's two other nominees. First, Brett Kavanaugh's nomination was upended by Christine Blassey Ford's accusations of sexual assault from their teenage years. Kavanaugh's angry performance during the confirmation hearing itself became the most visceral confirmation battle

since Clarence Thomas. This whole two-week effort has been a calculated and orchestrated political hit.

You may defeat me in the final vote, but you'll never get me to quit. Never.

Amy Koney Barrett's nomination was also norm-shattering, not because of the nominee herself, but because of how it happened. Remember, in 2016, Mitch McConnell said he wouldn't see

“Obama's appointee because it was an election year. McConnell said they had to wait until the”

election was over to pick the nominee. It was only fair to the voters, so he kept the seat open from February when Scalia died to after Trump was inaugurated. But then, in September of 2020, Supreme Court Justice Ruth Bader Ginsburg died. It's fair to say that Justice Ginsburg was revered by the left in much the same way that Justice Scalia was an icon to the right. And yet, even though it was mere weeks before the election, so close that early voting had already

started, Mitch McConnell did not hold himself to his own election year standard. No, he rushed through

Trump's third nominee, changing the dynamic of the court for decades to come.

Those confirmations were both much more dramatic. And the result is that now, Justice Gorsuch gets to enjoy relative anonymity while his newer colleagues take the heat of Republicans' partisan machinations. Mark agrees. Well, I would be shocked if a majority of Americans could identify him or even name him. I don't have that problem. Neil Gorsuch is very familiar to me. For reasons that preceded making this podcast, Gorsuch came into the news at a very specific time

in my career as a journalist. I started working at Slate in March of 2016. It was about one month after Justice Scalia had died and before Donald Trump was a serious political candidate. I started here as the science editor, so I wasn't paying close attention. But after Trump's selection, the editors at the magazine realized that legal battles were about to be a huge story, so they asked me if I would help out on Slate's jurisprudence desk.

I started, just as Neil Gorsuch was nominated to the court. His was the first confirmation hearing I watched. I've been watching ever since. Because all of the political maneuvering to get all this power on the Supreme Court worked, and in exchange, the court has handed down some truly stunning legal victories to conservatives. Their decisions haven't been very popular, and the court knows this, so they've been playing defense. Here's Justice Gorsuch in a sit-down interview with Major

Garret of CBS News, displaying those classic Neil Gorsuch debate skills. There are people who watch this right now and say, "I thought I understood what Roe vs Wade meant in our country. I thought I understood what affirmative action in college admissions meant, and this court has told me I didn't understand what those things

“meant, and I wrongly relied on things that I thought were settled." What would you say to those?”

I'd say those are deeply complex legal questions on which reasonable minds can, of course, and do disagree. And then when it comes to Roe vs Wade, for example, what are the court decide? Decided that we, the people, should answer that question, not nine people sitting on Washington DC. Let's unpack this for a second, because it sounds so reasonable. We didn't end the right to abortion or affirmative action, we're just sledding you decide for yourselves.

That argument is deceptive. It's not like the court's rulings trigger a nationwide vote to figure out what the people think, and then go with that as the law. America doesn't work like that. The reason the law exists at all is to protect the rights that are so fundamental to our lives, so inalienable, that they cannot be subject to these kinds of votes.

and lawyers and Supreme Court justices tell us, while it's legally complex, regular Americans won't

understand. That's not true. That's just a cover to avoid having to answer for the choices they're making. We're doing this series because we deserve to understand our own rights, and in order to do that,

“we need to know who's making the rules. So, who is Neil Gorsuch?”

Neil Gorsuch is an originalist and a textualist. Now you know what that means. Sometimes he follows those theories to a T, even if it means his ruling is absurd, like in the frozen trucker case, or liberal coded, like in Bostock.

He's willing to rule against the president who nominated him, like he did with tariffs.

He's also someone who has deeply held beliefs about things like the administrative state and abortion. He's figured out how to make those beliefs into law from his perch on the highest court in the land. But perhaps the most memorable thing about him is that he's an operator, one who's great at

“acting like he's not an operator at all, and that's how he gets away with it.”

Be careful of the nicest guy in the planet. That's what I would say. Next time, Mark Joseph Stern Returns, along with our colleague, Dahlia Lithwick to break down some more key cases that will help us understand Justice Gorsuch's jurisprudence. I don't think that progressive sort of looking for the surprise savior of the rule of law should be like betting on the pony that is, you know, Gorsuch.

Well, I just have to throw out here that he's not a pony himself, but he did have ponies on his hobby farm in Colorado, and he presented himself as like a true farmer during his confirmation hearing. He was at most the proprietor of a petting zoo. We'll also get into his relationships with the other justices. You won't want to miss it. The Supreme Court isn't going anywhere. Neither is Slate's coverage of it.

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becoming Justice Thomas. And every Slate podcast will come to you ad-free. And if that's not enough, by becoming a Slate Plus member, you'll be supporting the work we're doing here at Slowburn and across all of Slate. I'm talking about reporters, editors, producers, writers, and yes, the puzzle nerds who make our crosswords. If you think Supreme Court coverage is important right now, please support it. You can join

right from the show page on Apple Podcasts or Spotify or at Slate.com/SlowburnPlus. If you're a member already, thank you. If not, come join us. This episode of Slowburn was written and reported by me, Susan Matthews. It was produced by Sophie Summergrad, an edited by Hillary Fry, Neil Lobel, an Evan Chung. Our supervising producer is Joel Meyer. Neil Lobel is the executive producer of Slate Podcasts. Our legal editor

is Mark Joseph Stern. We had production help from Patrick Ford, special thanks to Dahlia Lithwick and Sarah Burningham. Original music and sound design by Hannah Sprown. Natalie Matthews Rammo created the artwork for this season. See you in episode 3. Thanks for listening.