The Volokh Conspiracy

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I Doubt This Is the Right Way to Manipulate Justice Gorsuch

Capsule summary: "Vote the way we want you to, and maybe we'll have just a bit less contempt for you than we now do."


From a post (not by Michael Dorf) on Dorf on Law:

Just about everyone is expecting Justice Gorsuch to vote with the conservatives [in Janus v. AFSCME, the compulsory agency fee case], and overturn Abood [v. Detroit Bd. of Ed.]. But I am not so sure. He was uncharacteristically silent during the oral argument. Moreover, as I wrote here, there are strong stare decisis reasons not to overturn Abood. It would not be hard for Justice Gorsuch to say that he would have voted differently in the first instance but respect for precedent requires him to affirm Abood.But why would he do that?

Maybe Gorsuch would like to change the narrative that he is nothing but a Scalia/Thomas clone who always votes or almost always votes in lockstep with the conservatives and the Republican Party. Gorsuch just completed his first year on the bench and the reviews from conservatives have been uniformly sparkling while liberals, including this author, have been extremely critical. Criticizing everything from his bad writing, to his originalist hypocrisy, the expectation among left-of center and liberal media is that Gorsuch is an ideologue who will just be one more reliable right-wing vote.

There is of course also the problem that Justice Gorsuch is on this Supreme Court only because this Senate Majority Leader stole the seat from President Obama. Everyone knows that Merrick Garland would have voted with their liberals to reaffirm Abood. If Gorsuch sides with his conservative colleagues to reverse the case, there is no doubt that the decision will be deemed illegitimate by many on the left. Gorsuch could dramatically change the narrative of his career by voting not to reverse Abood.

I am not suggesting that he would do so if he was convinced the law required a different result, just as I am sure Chief Justice Roberts believed the position he espoused in NFIB was correct. But of course, the Justices have great discretion in deciding these difficult legal cases. Justice Gorsuch could easily and not controversially justify a vote for the states in Janus by relying on the doctrine of stare decisis. If he did that, he could write an opinion advocating for the rule-of-law values he claims to take so seriously. Additionally, there is no legitimate originalist argument to support shredding over 20 state laws imposing fees for bargaining-related activities. If Justice Gorsuch were to anchor his vote in originalism and stare decisis concerns, he would prove his critics wrong and do the right thing all at the same time.

Supreme Court Justices are people just like the rest of us. Although they hold their seats for life, they want to be considered good at their jobs and principled decision-makers. Don't be surprised if Justice Gorsuch uses the Janus case to demonstrate that he is not just a clone of the late Justice Scalia.

Will Baude and I filed an amicus brief supporting the AFSCME position in Janus, and I naturally hope Justice Gorsuch will agree with us. (We actually think Abood should indeed be overturned, but in the opposite direction from what many conservatives have argued.) I also think there are plausible stare decisis reasons for keeping Abood, despite its unsound reasoning and the vagueness and illogic of the line it draws between what uses of agency fees are allowed and what uses are not; questions about what to do with unsound precedents are always complicated.

But I would much rather that Justice Gorsuch disagreed with me, than that he voted with me because he "would like to change the narrative that he is nothing but a Scalia/Thomas clone," or that he is worried "that the decision will be deemed illegitimate by many on the left," or that he is worried about the "left-of center and liberal media," or that he wants to "dramatically change the narrative of his career"—that is to say, the narrative as written by people who seem to have contempt for his views, and, basically, for him.

You're a hypocrite! You're a bad writer! You're in a stolen seat! But if you vote the way we want you to vote, maybe we just might like you! … at least until you next cross us. What is this, Mean Girls: Supreme Court Edition?

From what I know of Justice Gorsuch, that's not the way to his heart (nor should it be the way to the heart of any self-respecting Justice, conservative or liberal). Still, hey, if I'm right, just keep on talking that way, folks—good to see the tactic out in the open.