- The Washington Times - Sunday, May 12, 2019

The Supreme Court has completed what observers said was a rather drama-free year of oral arguments — though one of President Trump’s justices did stand out.

It wasn’t Justice Brett M. Kavanaugh, completing his first term on the bench, but Justice Neil M. Gorsuch in his second full term, who analysts said has come into his own as a forceful voice from the bench.

From challenging precedent to prodding Congress to do its own work to settle disputes, Justice Gorsuch made waves from the far end of the left side of the dais.

In one high-profile case over a large World War I memorial cross set in a public park, he wondered why religious liberty law bowed so deeply to those who take offense.

“We have to tolerate one another,” he suggested.



Sitting next to Justice Gorsuch was Justice Sonia Sotomayor, President Obama’s first pick for the high court, who also strengthened her voice this year, becoming a more vocal advocate for Hispanics — she’s the only Hispanic on the bench — and a thorn in the side of Trump administration lawyers.

During oral argument over the Census Bureau’s quest to probe Americans about their citizenship during the 2020 count, she said Hispanics were justified in worrying about the Trump administration’s motives.

“Are you suggesting they don’t have, whether it is rational or not, that they don’t have a legitimate fear?” she asked Solicitor General Noel Francisco.

Justices Gorsuch and Sotomayor also have become a playful duo. During one oral argument, she reached over to pinch him, attempting to demonstrate a particular level of force in a case over when a robbery turns into a violent felony.

SCOTUSBlog reported that Justice Gorsuch seemed bemused and mildly alarmed, and the courtroom audience laughed.

“It’s always nice to see when justices on different sides can like each other,” said Curt Levey, president of the Committee for Justice and a prominent court watcher.

Mr. Levey said for GOP-appointed justices, they can range from moderate former Justice Anthony M. Kennedy, whom Justice Kavanaugh replaced, to Justice Clarence Thomas, the quiet conservative. Mr. Levey said Justice Gorsuch is planting himself on the Thomas side — but more vocal.

“This term I was looking for more and I think I got it. If Thomas spoke, we would probably get equally bold and out-of-the-box thinking,” Mr. Levey said.

For his part, Justice Thomas broke his famous silence from the bench, asking his first question since 2016, and just his second since 2006.

In a case dealing with a black man appealing his murder conviction over claims the state had blocked black jurors, Justice Thomas, the only black member of the court, wondered whether the defense had struck any white jurors.

It turned out the defense had struck white jurors — but the convict’s lawyer told Justice Thomas that didn’t matter, insisting the case before the high court was only about the prosecution’s behavior.

Ilya Somin, a law professor at George Mason University, said cases involving racial issues can entice Justice Thomas into participation.

“While it is always surprising when he asks a question because it happens so rarely, it’s a little less surprising he asked one in this context,” Mr. Somin added.

Adam Feldman, who runs the blog Empirical SCOTUS, crunched the numbers on this year’s oral arguments and wrote that Justice Sotomayor was the first justice to ask a question in oral argument more often than any of the others. She also was the most frequent second-speaking justice.

Mr. Feldman wrote that the liberal wing of the court has become more active in trying to shape the oral argument, perhaps hoping to shape the direction of the outcome.

For example, Justice Ruth Bader Ginsburg, who missed weeks of oral arguments while recovering from surgery, was back in the thick of things, jumping right into the questioning in an employment discrimination case in April.

“Shows some particular interest,” Mr. Feldman said.

Justice Kavanaugh, meanwhile, had a mostly quiet term of oral argument — though he did draw attention in March, when some court watchers wondered whether his questions suggested he would join the bench’s liberal justices to rule against partisan gerrymandering.

The case challenged extremely irregular maps that packed one party’s voters into districts while spreading out the other party’s voters, giving them more chances to win seats.

But Justice Kavanaugh wondered whether there wasn’t a right, enshrined in the 14th Amendment, that representation be divided proportionally to the number of votes each party gets, rather than by who wins a particular district.

“Why can’t the Equal Protection Clause be interpreted to require something resembling proportional representation?” he asked.

Conservative commentators were aghast, with one National Review piece saying there was no room for that European-style system under the Constitution.

At another point in the case Justice Kavanaugh wondered whether the Supreme Court should get involved at all, saying states are already active on the issue.

“Have we really reached the moment, even though it would be a big lift for this court to get involved, where the other actors can’t do it?” he said.

David Kaplan, a professor at New York University, said he thought the newest justice acted similarly to the way he conducted his questioning while on the U.S. Court of Appeals for the District of Columbia Circuit, where he sat for more than a decade.

“He’s shown himself to be prepared, inquisitive and thoughtful,” Mr. Kaplan said.

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