Jurisprudence

Neil Gorsuch Votes Like Scalia

He talks like Elena Kagan.

Neil Gorsuch on the steps of the Supreme Court following his official investiture at the court on June 15 in Washington.
Neil Gorsuch on the steps of the Supreme Court following his official investiture at the court on June 15 in Washington.
Win McNamee/Getty Images

When Neil Gorsuch was sworn in as an associate justice of the Supreme Court on April 10, 2017, Senate Republicans believed they had found another Antonin Scalia. Gorsuch has not disappointed them. Judging by his voting record, he is a fitting successor to Scalia. Gorsuch has voted with Clarence Thomas, a bona fide originalist like Scalia, about 88 percent of the time. Scalia himself sided with Thomas in roughly 91 percent of cases.

If we want to understand Gorsuch’s first-year record, it’s also important to study his behavior during oral arguments. These public performances serve a very important purpose, revealing the justices’ personalities, judicial philosophies, and interpersonal dynamics as they explore salient legal issues with the lawyers and among themselves.

Two dimensions of the justices’ participation in oral arguments shine light on their judicial styles. First, the amount of time they speak during oral presentations reflects their desire for the limelight. Some suggest that justices behave like peacocks by trying to garner attention. Thomas, who once maintained a 10-year streak of silence during oral arguments, criticizes his colleagues’ tendency to interrupt the lawyers. He feels that the justices “should listen to lawyers who are arguing their cases, and … should allow the advocates to advocate.”

The second dimension pertains to how the justices apportion their time between the two sides. Scholars note that the justices view oral argument as an opportunity to persuade their colleagues to support their viewpoints. In theory, a justice could try to do so either by throwing softballs to the lawyers they support or by arguing with the lawyers they oppose. However, Lee Epstein, one of the Supreme Court’s foremost empirical scholars, notes that “Hostile questions … are more effective than softball questions pitched to the side the Justice favors.” Hence, a justice interested in “persuad[ing] the undecided” during an oral argument—that is, building a coalition for his or her views—will pose “more questions [to] the lawyer for the party whom they plan to vote against.”

To understand Gorsuch’s approach, I examined oral arguments in the 59 Supreme Court cases he’d heard as of March 31. Using a text-analysis program written in Java, I analyzed official transcripts to count the number of words spoken—a proxy for speaking time—by every justice and lawyer.

To assess whether Gorsuch is really a fitting successor to Scalia, I benchmarked the former’s performance against the latter’s during the final year (February 2015–February 2016) of Scalia’s tenure. Why choose Scalia’s last year as my baseline? Because Republicans wanted to nominate a replacement who would mirror Scalia as closely as possible, not one who would grow into another Scalia in 30 years’ time. Furthermore, given that justices’ participation in oral argument is influenced by their colleagues’ demographics and ideology, it makes sense to compare Gorsuch’s first year with Scalia’s last because the court’s composition is largely identical.

Judicial participation might also be influenced by the “rookie effect.” As the justices themselves admit, they behaved differently in their first years on the bench (likely due to nervousness). Accordingly, I also compared Gorsuch with Elena Kagan, Obama’s most recent appointee, who joined the court in August 2010.

My statistical analysis reveals that Gorsuch spoke, on average, for about 3.8 percent of the total 60 minutes allotted to oral argument while Scalia spoke for 4.8 percent of the allotted time in his last year. Thus, Gorsuch is less of a peacock (so far) than his predecessor. However, Gorsuch’s first-year speaking time is statistically comparable to Kagan’s, which measured in at 4.4 percent of the allotted time. Gorsuch could grow more talkative over the years. Indeed, Kagan’s volubility increased to 5.9 percent as of 2016. If Gorsuch’s talkativeness increases similarly, he could become even more voluble than Scalia. (For what it’s worth, the most talkative justice on the current Supreme Court is Stephen Breyer, who spoke for 8.3 percent of the allotted time in the 2017 term. The least talkative: the aforementioned Thomas, who has not spoken since February 2016.)

When it comes to time apportionment, Gorsuch is not evenhanded. He speaks almost 2½ times as much during the argument of a lawyer with whom he disagrees. This contrasts sharply with Scalia, who apportioned his time equally between both sides. Again, on this dimension, Gorsuch behaves similarly to how Kagan did in her first year.

The similarities in the first-year volubility and time apportionment of Gorsuch and Kagan are interesting because these two justices have such different profiles. Gorsuch is a staunch originalist and a former appellate judge. Kagan is a liberal former Harvard Law School dean with no prior judicial experience. The extent of their jurisprudential disagreements—they disagreed at thrice the rate of Gorsuch and Thomas, for instance—makes the similarity in their styles at oral argument all the more striking.

Republicans who wanted to place a Scalia-like successor on the court should not be disappointed. Gorsuch not only votes like Scalia but also works hard to build a winning coalition on issues that Scalia would have supported. To truly become Scalia-esque, though, Gorsuch is going to have to learn to talk more and to speak to the lawyers on both sides.