It seems as though Justices Ruth Bader Ginsburg and Neil Gorsuch have been going toe to toe while sitting in the Supreme Court’s new term and they're at least keeping it civil!
The first time was earlier this month on October 3rd during arguments on Gill v. Whitford. At one point Gorsuch wondered if the court had any business hearing it at all to which Ginsburg sharply replied...
“Maybe we can just for a second talk about that arcane matter, the Constitution,” Gorsuch asked lawyer Paul Smith. “Where exactly do we get authority to revise state legislative lines?” He listed the constitutional provisions allowing federal intervention in state legislative matters (which concern apportionment and voting rights), so as to demonstrate that, in his view, there is no obvious grant of federal authority over state district maps.
In invoking this principle, Ginsburg was plainly rebutting Gorsuch’s point. This is not unusual during an oral argument. The New Yorker’s Jeffrey Toobin suggeststhe exchange reveals not a little animosity between Ginsburg and her new colleague, though he stretches the relevant facts to substantiate this reading. Writes Toobin: “There might have been an audible woo that echoed through the courtroom. (Ginsburg’s comment seemed to silence Gorsuch for the rest of the arguments.)”
I heard no such reaction in the courtroom when the case was argued. Were he indeed interested in confirming the veracity of this claim, he could have checked it against the audio recording of the argument. I did, for fear I had missed the wooing — but there was no woo to be heard. It is also inaccurate to say the remark “silenced” Gorsuch for the remainder of the argument. He asked another question less than one minute later, and asked six questions in the argument that immediately ensued. Vanquished only in Toobin’s mind, it would seem.
Neither instance gives the impression of personal enmity, at least in my view. But it is noteworthy that Gorsuch is comfortable publicly criticizing the work of his Court so early in his tenure, and that Ginsburg has chided him for it every time, especially because her retorts seem so superfluous. They will persuade no one, in the same way Gorsuch’s appeals are unlikely to convince any colleague not already sympathetic to his view of the world. Given their superfluity, it seems irritation is a more likely explanation for Ginsburg’s remarks. That this has happened twice in the space of two weeks further suggests Ginsburg is perturbed by Gorsuch and perhaps, just perhaps, finds him a touch arrogant.
One can’t read too much into oral arguments, and as the old adage advises, it takes three to make a pattern. Nor have the arguments borne evidence of wider hostility to the new justice. Justice Sonia Sotomayor, Ginsburg’s jurisprudential fellow-traveler, appears to hold Gorsuch in some esteem. The pair appear quite simpatico during the Court’s public sessions, trading smiles and laughs throughout.
Still, Ginsburg has rebuked Gorsuch’s every suggestion of precedential error. It’s a dynamic worth watching, and one that probably won’t be confined to arguments for much longer.