Gorsuch 2020?

Is Justice Neil Gorsuch short-sighted—or is he playing the long game?
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U.S. Supreme Court Justice Neal Gorsuch speaks during an event hosted by the Fund for American Studies on September 28th, 2017, at Trump International Hotel in Washington, D.C.

U.S. Supreme Court Justice Neal Gorsuch speaks during an event hosted by the Fund for American Studies on September 28th, 2017, at Trump International Hotel in Washington, D.C. 

During his confirmation hearing to become a Supreme Court justice, Neil Gorsuch stumbled repeatedly. As Dahlia Lithwick summarized, "he was a good deal more prickly than he needed to be, and a good deal more coached and canned than he wanted to be." Yet most reporters, like most senators, gave him a pass, glossing over Gorsuch's oddly brittle moments and the grating growls he issued under stress.

Gorsuch's grace period with the press didn't end until his aggressively conservative, and obnoxious, high court debut. The only surprise in any of this is that it lasted this long: Gorsuch is an ideologue, always has been. He's just gone big time. And he may be eyeing something bigger yet: the presidency.

Gorsuch has positioned himself as a perfect Republican nominee for elected as well as appointed federal office. Reading his Tenth Circuit opinions left me feeling queasy. He seems to have approached each case with a preconception about who should win and who should lose, who deserved the state's protection and who did not. Companies win; children with disabilities lose. I got similar chills reading The Future of Assisted Suicide and Euthanasia, the book that emerged from his Oxford University thesis on assisted suicide and euthanasia—a screed attacking the notion of any right to death with dignity that lays the foundation to erode other, existing fundamental rights, such as the right to choose.

It's no surprise that Gorsuch has leaned into politics even more boldly since his confirmation. Consider his gratuitous dissent in Pavan v. Arkansas, in which the Supreme Court squashed Arkansas' attempt to keep same-sex spouses' names off birth certificates. The justices didn't even opt to hear arguments in that case, instead noting that the issue had been decided by Obergefell, which recognized a constitutional right to same-sex marriage.

When Gorsuch dissented from a per curiam decision decided on the basis of Supreme Court precedent, it was, to put things mildly, an unusual move for the super-junior justice. As Linda Greenhouse wrote in July, this is "a man who participated in a mere two weeks of Supreme Court arguments—13 cases—amid eight colleagues whose collective Supreme Court tenure comes to 140 years."

Gorsuch's incensed Pavan dissent was also curious as a matter of Court politics. By forfeiting any pretense of moderation, Gorsuch indicated he's not there to persuade, or even genuinely engage, his colleagues. Less than a year in, Gorsuch has already managed to sour relations with Justice Elena Kagan, the Court's most moderate liberal, so profoundly that news of the rift actually leaked—a rarity. Gorsuch's unsubtle pushback to criticism, his proclamation that civility "doesn't mean suppressing disagreement," is correct in principle, as late Justice Antonin Scalia proved, but inapposite: Gorsuch is both disagreeable and incivil.

Our newest justice seems indifferent to the risk of burning bridges even within the conservative coalition. Gorsuch's Pavan dissent wasn't just a sally against the liberals; it was also a slap to comity-loving Chief Justice John Roberts, who joined the six-justice majority in the decision (though he had dissented in Obergefell). It was also strange behavior from a justice who'd presumably like to see more picks from President Donald Trump on the Court: Justice Anthony Kennedy has been rumored to be retiring this term, but—again, presumably—this preview of what to expect from a successor, and what it would mean for Kennedy's moderate legacy, could affect his timeline.

Even as he ignores the conventions of intra-Court politics, Gorsuch has embraced extra-judicial, partisan politics. Exhibit A: His shocking trip to Kentucky to campaign with Senator Mitch McConnell. Even the Associated Press referred to the trip as a "a home-turf victory lap for McConnell" meant to celebrate his success blocking so much as a hearing for Merrick Garland, former President Barack Obama's nominee to the late Scalia's seat.

More recently, Gorsuch used a speaking engagement at a conference as an opportunity to join the conservative-speech-is-suppressed bandwagon. This is a movement animated by folks like alt-right icon and devoted white nationalist Milo Yiannopoulos and backed by extremists like Steve Bannon and Trump, who tried to make a martyr of Yiannopoulos after his February speech at the University of California–Berkeley was canceled following safety concerns. (Not even Bannon will stick by Yiannopoulos.)

Gorsuch's bad behavior and radical bedfellows suggest he's either extremely short-sighted or playing the very long game. For more than 100 years, until the mid-1950s, it was (significantly) more common than not for at least one justice to be in the running for a presidential or vice presidential nomination. Nominations from Congress to the Court were, likewise, a frequent occurrence.

Gorsuch is just 50 years old. Average life expectancy for men in the United States is 78 years and change. For affluent white men, it's even higher. His worst-case scenario is a lifetime on the Supreme Court. The question is whether Gorsuch's best-case scenario is using the Court as a platform to launch his political career.

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