How Neil Gorsuch & Elena Kagan's Reported Feud Could Impact The Supreme Court
President Donald Trump's appointment of Neil Gorsuch to the Supreme Court wasn't without controversy, but by and large, he was regarded well with a sturdy list of credentials and former colleagues who vouched for his respectability. And while reports of the Trump administration's internal feuds and White House paranoia have persisted since the early days of Trump's presidency, the Supreme Court is generally not a scene for drama. Until perhaps now.
First, Gorsuch headlined an event last month at the Trump luxury hotel in Washington, D.C. hosted by The Fund for American Studies, a conservative nonprofit that aims to develop young leaders while promoting capitalism and limited government. While the justice did not cross any legal lines (Gorsuch received no payment for speaking), questions of Gorsuch's impartiality rose. Gorsuch required the luncheon to not solicit donations before he attended, but profits from food, beverages, and parking for the event went to the Trump hotel and essentially the family of Trump, the man who put Gorsuch on the bench.
Now talk is spreading that Gorsuch's behavior reportedly annoys and is alienating the other justices. His rumored number one rival? Justice Elena Kagan.
My surmise, from what I’m hearing, is that Justice [Elena] Kagan really has taken [Gorsuch] on in conference. And that it’s a pretty tough battle and it’s going to get tougher. And she is about as tough as they come, and I am not sure he’s as tough — or dare I say it, maybe not as smart. I always thought he was very smart, but he has a tin ear somehow, and he doesn’t seem to bring anything new to the conversation.
As Mark Joseph Stern from Salon noted, what makes this rumor remarkable is not just because Kagan and Gorsuch are potentially adversarial. According to Stern, it's because the rumor almost certainly came from one of the justices themselves — and on purpose, Stern said. Justices gather at conference to cast their votes in cases and explain the reasoning behind their decisions. Nobody is allowed to attend, including reporters. A leak could indicate that someone on the bench wants people to know about the internal dissent.
Rumors are that Gorsuch isn't making friends with his conservative colleagues on the bench, either. Totenberg also mentioned that Gorsuch "ticks off some members of the court — and I don’t think it’s just the liberals.”
Gorsuch skipped the first scheduled justices-only meeting, even though Justice John Roberts encouraged him to attend. Joan Biskupic, a Supreme Court biographer who's well connected to the justices, reported to CNN that newcomer and "rookie" Gorsuch has appeared in instances to be pedantically scolding the other justices, dominating oral arguments, and cutting off and correcting other justices. How Chief Justice Roberts feels about Gorsuch's behavior, we don't know, but we can guess.
Justice Ruth Bader Ginsberg reportedly expressed her irritation during the Supreme Court's argument in Gill v. Whitford, a case on the future of partisan gerrymandering. An hour into the argument, Gorsuch reportedly said, “Maybe we can just for a second talk about the arcane matter of the Constitution.” Media commentators have interpreted the statement as passive aggressive and condescending, as if Gorsuch is the only one who cares about the Constitution. Gorsuch continued onto a textbook reading of the Constitution to question why the court should be involved in redistricting at all, but Ginsberg was having none of that. “Where did ‘one person, one vote’ come from?” she reportedly countered, referring to the Supreme Court's involvement in past suffrage cases.
While Gorsuch might not be winning support on the court, many consider his a reputable appointment. "From his first days on the court, Judge Gorsuch was an independent thinker, never a party liner," wrote Michael McConnell, a Stanford University law professor who served with Gorsuch on the U.S. Court of Appeals. His opinion appeared in The Hill following Gorsuch's appointment. McConnell, who also supported Kagan's confirmation, described Gorsuch as "cordial and collegial." He said that while no one, including McConnell, agrees with all of Gorsuch’s opinions, his are "without exception thoughtful, moderate, and independent."
Either way, Gorsuch's rumored feather-ruffling has raised eyebrows and questions. The Supreme Court justices, despite disagreements, generally evoke a sense of camaraderie. Even Ginsberg and late Justice Antonin Scalia shared a warm friendship while remaining staunchly parked on opposite sides of controversial topics. But if the reportedly tense relationship between Gorsuch and the other justices continue, as well as any more questionable speaking engagements, public trust in the Supreme Court could end up being compromised.