Supreme Court

Judge Sykes on Justice Gorsuch

In recent remarks, the Seventh Circuit judge assessed the newest Justice's early work on the Court.

|The Volokh Conspiracy |

Next week will mark the one-year anniversary of Neil Gorsuch's swearing in as a Supreme Court justice. As a consequence, we'll soon be treated to a flurry of articules evlauating his first year on the court.

It may be particularly interesting to consider howother jursits evaluate Justice Gorsuch. As it happens, Justice Gorsuch's record was the subject of a lecture by the Honorable Diane Sykes of the U.S. Court of Appeals for the Seventh Circuit at the Case Western Reserve University School of Law earlier this spring. In these remarks, Judge Sykes comments on Justice Gorsuch's concern for text and legal process.

The Sykes lecture was this year's Sumner Canary lecture at CWRU. Incidentally, then-Judge Gorsuch delivered the Sumner Canary lecture in 2016. Video of the Gorsuch lecture is here, and a published version of his remarks from the Case Western Reserve Law Review is available here. Judge Sykes' lecture will also be published later this year.

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  1. In these remarks, Judge Sykes comments on Justice Gorsuch’s concern for text and legal process.

    Gorsuch’s presence on the court hasnt affected those who dont have a concern for text. Yesterday’s opinion in Encinio Motors included a dissent that a) mischaracterized/misquoted the applicable text of the statute and B) artificially created a new job description that didnt fit into the mischaracterized definition of the exemption and therefore reached a preferred policy result.

    1. The dissent had “concern for text,” but you disagreed with their understanding of it.

      1. “any salesman, partsman, ormechanic primarily engaged in selling or servicing automobiles,trucks, or farm implements.”

        That exemption covers “any salesman, partsman, or mechanic primarily engaged in selling or servicing automobiles.”

        Service advisors, such as respondents, neither sell automobiles nor service (i.e., repair ormaintain) vehicles. Rather, they “meet and greet [car]owners”; “solicit and sugges[t]” repair services “to remedythe [owner’s] complaints”; “solicit and suggest . . . supplemental [vehicle] service[s]”; and provide owners with cost estimates. App. 55. Because service advisors neither sell nor repair automobiles, they should remain outside the exemption and within the Act’s coverage.

        Mischaracterizing the job description and mischaracterizing the statute – hardly a misunderstanding
        The only substantive question is whether her misscharetization was intentional

        1. 1st paragraph a dissent – Of employees so engaged, Congress explicitly exempted from the Fair Labor Standards Act hours requirements only three occupations: salesmen, partsmen,and mechanics. The Court today approves the exemption of a fourth occupation: automobile service advisors.

          1. You don’y know what an automobile service adviser is,
            And MAY think Ron Paul is a textualist and/or originalist

            1. “Michael Hihn|4.3.18 @ 2:48PM|#

              You don’y know what an automobile service adviser is,”

              That is a statement you make with no foundation – though from Ginsburgs dissent, it is obvious she doesnt know

                1. P,.S, My ” foundation” is the law’s words … that you cited.

                  1. “Michael Hihn|4.3.18 @ 2:48PM|#

                    You don’y know what an automobile service adviser is,”

                    That is a statement you make with no foundation – though from Ginsburgs dissent, it is obvious she doesnt know.

                    Michael Hihn|4.3.18 @ 4:24PM|#

                    P,.S, My ” foundation” is the law’s words … that you cited.

                    Michael – You could at least try to follow the same subject of your original statement

                    1. You are both of you nuts.

                      The history on this is far more complex than either of you acknowledge.

                      The Department of Labor originally said in 1970 that service advisors were not exempt.

                      However, several Circuit courts rejected that interpretation.

                      DOL in 1978 and again in 1987 issued guidance that service advisors were exempt without issuing a formal rule.

                      DOL in 2008 put up a proposed rule for notice and comment that had service advisors covered by the exemption.

                      In 2011 DOL drops the proposed rule and issues a final rule with the opposite conclusion of the proposed rule without explanation.

                      The majority in the SCOTUS decision you are arguing about does not actually interpret the statute either way. What they did do was reverse the 9th Circuit on the grounds that Chevron deference was inappropriate because the final rule was procedurally defective and remanded the case back to the 9th to interpret the statute in the first instance.

                      The Ginsberg opinion is a concurrence, not a dissent.

                      The dissent is by Thomas and Alito. The dissent agrees with the majority that the final rule is procedurally defective and that Chevron deference is inappropriate. However the dissent thinks that SCOTUS should have decided the interpretation of the statute itself instead of punting that issue back to the 9th Circuit. And the interpretation Thomas and Alito want is that service advisors ARE categorically exempt, which was the position of the DOL from 1978 up until 2011.

                    2. Slyfield – “The Ginsberg opinion is a concurrence, not a dissent.

                      The dissent is by Thomas and Alito.”

                      did you read the opinion?

                      THOMAS, J., delivered the opinion of the Court, in which ROBERTS, C. J.,
                      and KENNEDY, ALITO, and GORSUCH, JJ., joined. GINSBURG, J., filed a dissenting
                      opinion, in which BREYER, SOTOMAYOR, and KAGAN, JJ., joined.

                      http://www.scotusblog.com/case…..er=desktop

                    3. Your link is broken.

                      I read an opinion under the case name you mentioned above, the decision I found does not match the information you list.

                    4. You are both of you nuts.

                      I merely addressed his massive error in logic,

                    5. You confuse easily also?

                      Pay attention.

                      1) I said you don’t know what an automobile service adviser is.

                      2) You ASS-umed that I had no foundation for saying that,

                      3) I said my foundation was the law’s words as cited by you.

                      4) Youi go off the rails totally.

                      The job fits the legal definition, because the job is a sales person,
                      I did not SET OUT to humiliate you, but you demanded it,.

                    6. Michael – you apparently didnt notice that I quoted Ginsburg to demonstrate the very point that I was making that :

                      1) she mischaractrized the statute and
                      2) she mischaracterized the job description

                      And likely did both intentionally

                    7. I said you are full of shit, and explained why, ( I just saw two more!)

                      Then I had to respond to your bat-shit crazy evasions here.
                      Which I jammed up your ass here

                      So I already knew your fetish for mental masturbation.
                      (yawn)

                      Because service advisors neither sell nor repair automobiles, they should remain outside the exemption and within the Act’s coverage.

                      ONE MORE TIME. THEY NOW SELL REPAIRS AND MAINTENANCE — WITHIN THE SERVICE DEPARTMENT

                      AGAIN: MY “FOUNDATION:” IS YOUR OWN WORDS

                      “any salesman, partsman, ormechanic primarily engaged in selling or servicing automobiles,trucks, or farm implements.

                    8. Michael –
                      Read what I wrote –

                      Michael – you apparently didnt notice that I quoted Ginsburg to demonstrate the very point that I was making that :

                      1) she mischaractrized the statute and
                      2) she mischaracterized the job description

                      And likely did both intentionally.

                    9. (sigh)I noticed it and explained WHY you are wrong… twice now.

                      Since you now repeated the exact same comment I challenged … that makes you a bloviating blowhard. So … (in defense of your repeated aggression) ….

                      I confirm the comment by MatthewSlyfield
                      1) Your link is broken.
                      2) Found the ruling anyhow, and can confirrm you lied about it.
                      3) You FAILED to rebut HIM .. twice … or correct your fucked-up link … well before my comment that you also ignored (in a different manner)

                      Hence boldface.

                      Anything NEW?

                    10. (Continuing)

                      Joe-Dallas’s persistent and snarky bullshit can be confirmed at SCOTUSBLOG

                      Note that he lied, blaming on a liberal judge’s dissent — when the dissent was by two conservatives and a DIFFERENT liberal! (Thomas. Alioto, Sotomayor) Ginsburg filed a CONCURRING opinion, which means she AGREED with the majority, for a different reason.

                      He not only screwed up the definitions, he “forgot” to include the reasoning that explains it.

                      “Because the Department of Labor’s 2011 interpretation of this provision was issued without the reasoned explanation that was required in light of the department’s change in position and the significant reliance interests involved, the provision must be construed without placing controlling weight on that interpretation.”

                      So his screwup was MUCH worse than I originally depicted. OBVIOUSLY the Court was NOT divided for left-right reasons. And he attacked and insulted Ginsburg for a disent by Allito, Thomas and Sotomayor. He writes a love letter to Gorsuch, but attacks Ginsburg for NOT dissenting!! Gorsuch did NOT write the opinion!… scroll back and see how often he REFUSED to correct such a MULTI-FACETED screwup.

                    11. I don’t agree with Joe Dallas, but you are embarrassing yourself, and boldfacing your statements and randomly capitalizing letters does not make your arguments (about anything) more persuasive.

                      Hint: the thing you are so passionately ranting about? You are looking at the wrong case.

                    12. Ad-hominemm.
                      FAILS to address a single point.

                      I said the boldface was response to the bullshit I documented
                      This too — defense of your aggression and bullshit

                      That’s why I link to the proof. (smirk)

                    13. You don’t understand the meaning of the phrase “ad hominem,” and my comment doesn’t fail to address a single point. Rather, my comment dismisses all your points by noting that you’re talking about the wrong case.

                      Hint: there are two Encino Motorcars cases. You did indeed provide a link, but if you look at what you linked to, it’s a 2016 Supreme Court case. The one that people are talking about is the one just handed down this week, in 2018. This one.

        2. Now, now. How can we expect the Honorable Justice Sotomayor to know that SOLICIT and SELL have a definition in common; just as salesman and service advisors are trying to convince a potential customer to make a purchase.

          1. Now, now, she never met you … but made a fool of you.

            In THAT context, to Solicit is to seek or ask for an order.
            To Sell is to close the deal.

            However
            NEITHER of those two words is attributed to Sotomayor on this entire page.
            NOR DOES HER NAME APPEAR!! (except a reader’s comment on how she voted).
            Now, now.
            The word Solicit appears ONLY in Joe-Dallas’s comment — which we both agree is a screwup

            Any questions?

            -Retired Sales Training Manager for a $+1 billion corporate division.

          2. Of course solicit and sell have a definition in common. Sotomayor knows that too. The dispute in this case did not turn on whether service advisors sell things, but on what they sell, and whether what they sell falls under the applicable exemption. Everyone agrees that people who sell cars (at a dealership) are exempt. Everyone agrees that people who service cars (at a dealership) are exempt. The issue was whether service advisors fit in either category (and whether that matters). They do not sell cars, and they do not service cars. Rather, they sell service for cars.

            1. Of course solicit and sell have a definition in common

              Already discredited.

              I already cited the part that proves you wrong .. and in boldface

              P.S. Sontomayor is NOT Ginsburg. Why do you folks think all liberal women are the same person????

              1. See my post above. You cited something from the wrong case.

                Being aggressively wrong doesn’t make you less wrong.

  2. I’ll be interested in the more quanititative post-mortems, but from the first draft of history on this blog, Gorsuch seems to be performing as intended, both legally and politically.

      1. Projection is a serious issue although in your case it appears to have become a full blown delusion.

        1. (pees pants laughing at you)

          Considering yout MASSIVE fuckup here

          All right-wing robots repeat the same memorized soundbite … “projection” … . when they merely disagree. The same authoritarian mentality which likely caused the “massive fuckup” linked here.
          Thereby EVIDENCE of a fascist mindset.

      2. Please define Fascism.

  3. I think one probably needs a few years to get a good sense of a judge.

    I will toss out there that I found the process putting this guy on the bench here was nefarious. This isn’t the place really to spell out why — others have said why & I’m not going to go into detail for those who disagree — but to some of us the seat will always be tainted.

    1. “but to some of us the seat will always be tainted.”

      To some of you, any decision which doesn’t come out your way – up to and including Presidential elections – will always be tainted. That’s the amusingly ironic thing about Democrats – they only believe in democracy when they win.

      1. Weird definition of democracy.

        Unsurprising your main response is to yell about the libs, though. Just having to be better than the cartoonish tyrants in your imagination can cover many a sin!

        1. You’re losing your touch Sarcastr0.

          Just having to be better than the cartoonish tyrants in your imagination can cover many a sin!

          This applies just as much to you as to all the democrats I know whose first instinct is to deride the “cartoonish image of a republican”. I even now have one who thinks Trump is mentally unstable.

      2. That’s the amusingly ironic thing about Democrat

        Can you do it without the tribal bigotry? Or … is that a cover for your ignorance on the issue — which has NOTHING to do with Democracy?

      3. By what standard is the Senate a democratic institution?

        And even if it meets your definition, by what standard was the rejection of the Garland nomination a decision of the majority of the Senate, as opposed to a decision of its partisan leaders?

        Garland would, in all likelihood, have been confirmed had his nomination come to a vote. It didn’t, which hardly suggests that his rejection had much to do with democracy.

        1. Had the GOP senators really wanted to confirm him, they would have called for it to happen. The fact is, they didn’t. And they weren’t required to.

          1. What are the odds that enough GOP Senators would demand a revolt against their leadership?
            That’s a separate issue,

        2. You’re forgetting about the advice part of the Constitutional requirement. I would also note that Democrats had no problem with the Senate rules when they were in charge, even going over 5 years without passing a budget yet now whining about a less than a year delay.

          1. Flame – appears he forgot about both the advice part and the consent part

            1. I’m not forgetting anything. Stop spewing stupid right-wing BS.

              My point is simple. if there were enough votes to defeat the nomination there would have been no need for McConnell to prevent a vote. He could have said, “Garland deserves a vote. Let’s have it tomorrow.” Then the nomination would have been defeated and there would have been no legitimate complaints about the process.

              But he didn’t allow a vote, which suggests to me that he knew Garland would be confirmed if he did. Just because Republican Senators were unwilling to rebel against their leadership doesn’t mean some wouldn’t have voted to confirm.

    2. So having Democrats hoisted on their own petard by applying the “Biden Rule” against one of their nominees forever taints the nomination. You sure you want to go down that road.

      Play stupid games, win stupid prizes.

      1. They’re BOTH wrong. Which means you FAIL at Social Justice.
        Left – Right = Zero

        And, technically, you’re totally wrong on the Biden Rule.

        There was no vacancy. Obviously no nominee. He had proposed a RULE CHANGE — which was DEFEATED — that an election-year vacancy not be filled until after THE ELECTION. Do the math – that’s still be the sitting President!! Biden’s stated purpose was to take the nomination hostility OUT of the election. because so many recent ones had been so vicious (Bork, Thomas and others).

        Play stupid games, win stupid prizes.

        This is your prize!

        1. I assume those screaming about the Senate being a defective, lopsided democracy, or not really one at all, and therefore the judge is forever tainted, would be up in arms with rage over the proposal to delay a nomination until after an election. How dare those in power take the politics out of it! I.e. remove democratic impulse of the electorate in pushing their senators.

          1. That’s likely why they lie through their (tribal) teeth.

            Must clarify: Left – Right = Zero

          2. Democratic impulse. Right, Krayt.

  4. “Textualism ” is the first excuse of scoundrels. Even extreme fascists like Ron Paul, who says state governments cannot be limited by the Constitution. Even though states ratified the 9th Amendment.

  5. Just a question for the lawyers. Suppose a sitting appellate judge had in mind some harsh criticism for a SCOTUS justice. Do you think you would hear it in public? If not, why pay particular attention to whatever else you do hear?

    1. Suppose a sitting appellate judge had in mind some harsh criticism for a SCOTUS justice. Do you think you would hear it in public?

      Judge Posner says hello.

      (Yes, he stepped down. No, he did not hesitate to blast justices while he was still a sitting judge.)

      1. Unlike most here, Judges and Justices mostly refrain from personal attacks.

      2. I had Posner in mind when I wrote the comment?well, to be honest, from about a second after I hit “submit.” Expected someone to mention him.

        I suggest now that Posner’s willingness publicly to criticize sitting Supreme Court justices did much to establish his commentary as potentially important (at least in the opinions of observers who were not among his many critics)?and certainly worth attention, which it attracted. Am I mistaken to suggest also that Posner’s example has not been much imitated, if at all?

        1. Two judges who has now passed away from the 9th Cir. also come to mind — John Noonan, e.g., wrote a book strongly criticizing the Supreme Court’s state sovereignty doctrine & Stephen Reinhardt criticized some justices too.

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