Neil Gorsuch is supposed to be a good writer. In fact, he once was: During his tenure on the 10th U.S. Circuit Court of Appeals, Gorsuch produced a number of witty, lucid, and pithy opinions. But since his elevation to the Supreme Court, Gorsuch’s prose has curdled into a glop of cutesy idioms, pointless metaphors, and garbled diction that’s exhausting to read and impossible to take seriously. It may even be alienating the conservative justices whom Gorsuch was supposed to beguile with his ostensibly impeccable reasoning.
Consider Gorsuch’s dissenting opinion in Artis v. District of Columbia, a rather arcane case the court decided on Monday. After Stephanie Artis lost her job with the D.C. government, she sued D.C. in federal court under both federal and District law, alleging sex discrimination and retaliation. The court eventually ruled against her on the federal claims and dismissed her D.C. claims without ruling on their merits. Artis filed these claims in a D.C. court 59 days later, but because the federal court had taken two and a half years to decide her case, the statute of limitations on these claims had expired. A judge tossed her case.
Was Artis really locked out of D.C. court because a federal judge took so long to rule? In a 5–4 decision authored by Justice Ruth Bader Ginsburg, the Supreme Court held that she was not. Ginsburg pointed to a federal law which states that statute of limitations for a state claim “shall be tolled while the claim is pending” in federal court, “and for a period of 30 days after it is dismissed.” In legalese, Ginsburg wrote, tolled simply means suspended, citing multiple federal statutes, precedents, and a law dictionary to prove her point. Thus, the statute of limitations on Artis’ D.C. claims stopped running when she filed them in federal court, and only resumed 30 days after that court threw them out. She now gets another chance in D.C. court.
Gorsuch dissented and was joined by Justices Anthony Kennedy, Clarence Thomas, and Samuel Alito. He began his opinion like this:
Chesterton reminds us not to clear away a fence just because we cannot see its point. Even if a fence doesn’t seem to have a reason, sometimes all that means is we need to look more carefully for the reason it was built in the first place.
Leave aside the pretentious reference to “Chesterton.” What’s irksome about this passage, as law professor Nicholas Bagley notes, is its redundancy. The first sentence is catchy, but the second stomps all over it, bludgeoning the reader with a gratuitous and clunky explanation.
This crime against the English language might be pardonable if Gorsuch deployed his fence metaphor to clear up some technical complexity. He does not. Instead, he veers from the fence to an ancient rule called “journey’s account.” According to Gorsuch, this rule gives plaintiffs nothing more than a brief “grace period” to refile their claims after a court dismisses them. To illustrate his point, he cites a 1647 treatise by Edward Coke, which states:
“[T]he common law set downe the certaine time of 15 dayes,” because “a dayes journey is accounted in law 20 miles,” as “a reasonable time … within which time wheresoever the court of justice sate in England, the party … wheresoever he dwelt in England … might … by the said account of dayes journies appeare in court.”
Convinced? Neither was Ginsburg, who (correctly) dismissed Gorsuch’s tangent as an irrelevant “history lesson.” She also ridiculed Gorsuch’s “grace period” theory as “entirely imaginative,” given the total lack of evidence that Congress “had any such ancient law in mind when it drafted” this statute. Gorsuch’s dissent, Ginsburg wrote, cannot, “for all its mighty striving,” identify “even one federal statute” that uses the word differently. “From what statutory text, then,” she wondered, “does the dissent start?”
None, as it turns out. Gorsuch’s theory is utterly divorced from the text of the law, and based instead on “our foundational principles of federalism.” Or so he claims. In reality, the court has already unanimously upheld this statute’s constitutionality, and Gorsuch’s federalist fretting makes little sense given the majority’s minimal intrusion upon states’ rights. Yet he closes his opinion with a return to the fence metaphor, accusing his colleagues of disregarding the Constitution:
The Court today clears away a fence that once marked a basic boundary between federal and state power. Maybe it wasn’t the most vital fence and maybe we’ve just simply forgotten why this particular fence was built in the first place. But maybe, too, we’ve forgotten because we’ve wandered so far from the idea of a federal government of limited and enumerated powers that we’ve begun to lose sight of what it looked like in the first place.
Notably, Roberts—who generally shares Gorsuch’s commitment to states’ rights—declined to sign onto this nonsense. Instead, he cast the decisive vote against this warped analysis. Alone among the conservatives, Roberts seems to have recognized how silly Gorsuch’s position is, and how gruesomely it mangles the text of a statute to reach an unfair result. The chief justice deserves credit for refusing to play along with Gorsuch’s pseudofederalist posturing and following the more practical route.
Gorsuch’s argument in Artis bears a vague resemblance to his notorious frozen trucker dissent, in which he twisted the actual words of a statute to deny relief to a deserving plaintiff. What’s particularly irritating about this bad Gorsuch opinion, though, is that he makes his terrible argument so poorly.
Notice the fat in the passage above: “clears away a fence that once marked a basic boundary” instead of “clears away a basic boundary”; “but maybe, too”; “maybe we’ve just simply forgotten.” This excess verbiage is one of Gorsuch’s specialties, along with kludgy and archaic idioms. In his brief career on the court, he’s given us “cheek by jowl,” “constable and quarry,” “work enough for the day,” and “at the end of a long day.” He has used “and more besides” twice in the same opinion. He has called one plaintiff’s position “an invitation I would run from fast.” (The “invitation” in question, which the court accepted, allowed the plaintiff to sue more easily for employment discrimination. Sensing a theme?)
Gorsuch tends to write in big blocks of text, with few commas and no section dividers. Endless paragraphs bleed into one another and conclude with faux-folksy aphorisms like “this court often speaks most wisely when it speaks last.” As that maxim indicates, Gorsuch has a habit of lecturing his colleagues in the most condescending tone possible. In his very first dissent, Gorsuch scolded the court for allegedly short-circuiting Congress:
If a statute needs repair, there’s a constitutionally prescribed way to do it. It’s called legislation. To be sure, the demands of bicameralism and presentment are real and the process can be protracted. But the difficulty of making new laws isn’t some bug in the constitutional design: it’s the point of the design, the better to preserve liberty.
No doubt the justices in the majority, including Roberts and Alito, needed this ConLaw refresher course from their newest colleague.
Why does Gorsuch write like this? In all likelihood, he’s trying to emulate his idol and predecessor, the late Justice Antonin Scalia. Scalia was a writer of extraordinary verve and concision. Where Scalia’s prose was lapidary and instinctive, Gorsuch’s is limp and self-conscious. It is, at times, genuinely painful to read.
Artis is a minor case, and there’s no good reason for anyone to suffer through Gorsuch’s entire dissent. (I’d suggest you revel in Justice Elena Kagan’s marvelous prose instead.) But in the near future, the junior justice will begin to receive major assignments, and we’ll have to pay careful attention to his words. Let’s hope he settles in by then and figures out that sometimes a fence is just a fence.
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