US Supreme Court justice Neil Gorsuch is a man of many moods.
At hearings he can seem grumpy, sipping from a travel coffee mug and saying nothing. Or imperious, ignoring the proceedings and reading. But on his best days he seems to be aiming for title of funniest tough guy on the high court.
There’s not a whole lot of competition, given. Clarence Thomas is famously reticent. Samuel Alito is a straight man, and Brett Kavanaugh is into the importance of being earnest. Meanwhile, Ruth Bader Ginsburg and Sonia Sotomayor are busy peppering advocates with difficult questions as Elena Kagan strategically feigns confusion to actually straighten counselors out.
Yet none seem to share Gorsuch’s determination to drolly demolish, his drive to prove points with polish, to hammer home positions with a wit at times so scathing—so tortuous if you will—that it prompts pity for lawyers on the receiving end, even when they are arguing against legal relief for a person facing possible torture.
Take Monday, for example, when Gorsuch questioned assistant solicitor general Matthew Guarnieri. He was arguing for the Department of Justice in a case about the UN Convention Against Torture (CAT) and its interaction with US immigration law. Gorsuch completely ignored the petitioner’s counsel but latched onto Guarnieri like a dog gnawing on a deliciously meaty bone. He rhetorically beat the government lawyer into stunned submission, then topped off their aggressive colloquy with a shocking God joke.
Same but different
Here are the details of the case. Nidal Klalid Nasrallah is Lebanese and Druze, a religious minority subject to persecution by Hezbollah, a group operating in Lebanon and throughout the Middle East that the US considers terrorists. Nasrallah grew up in Lebanon, came to the US as a teen, became a lawful permanent resident, graduated college, and eventually faced deportation for purchasing stolen cigarettes from undercover agents.
He was ordered removed but sought to have the order stayed under CAT, which prevents signatory nations from returning people to countries where they may face torture. The case at this stage turns on the question of whether a CAT claim is separate from an immigration judge’s final order of removal.
Nasrallah says it is different and wants his CAT claim reviewed by a federal court. The DOJ says it isn’t and convinced the 11th Circuit Court of Appeals it had no jurisdiction to consider possible persecution. The high court must decide who is right.
Two alleged questions
Gorsuch began gently with the assistant solicitor general, interrupting Guarnieri’s introduction politely. “Counsel. Two questions. Take them in whatever order you want or ignore them both,” he offered.
But the justice wasn’t really asking as much as making a point with his queries, it turned out. And that point seemed to be that the government is wrong.
Gorsuch said that just because a person can’t be returned to a country where they face torture doesn’t mean they can’t be deported elsewhere. CAT claims don’t change a deportation order per se, just the place a deportee may be sent. Doesn’t that show CAT and the removal order are separate and distinct decisions?
The justice’s next alleged question turned out to be a set up for the assistant solicitor general, meant to trip up counsel and ultimately showcase Gorsuch’s superior reasoning and jousting skills.
“Can’t something be part of a proceeding and yet be different?” he asked. In other words, couldn’t Congress want a system where, for efficiency’s sake, the CAT and removal questions were both presented at one hearing but counted as different issues for review?
Guarnieri replied, “Well, Justice Gorsuch, if I may take your second question first, we think…Congress specified that CAT claims would be reviewable only as part of review of the final order of removal, not as a separate proceeding that would occur at the same time….”
Gorsuch interrupted, seeming to bristle at an implication that he didn’t get immigration law. “I understand exactly. It’s not a separate proceeding, but that doesn’t necessarily mean it’s the same thing as a final order of removal, does it?”
The assistant solicitor general spluttered, “Well, no, I agree with that, but the…the…”
The justice cut him off again “Okay. So you agree that one can have two distinct things in a single proceeding?”
And before Guarnieri could make his point, Gorsuch plowed forward. “But you agree…Once the government concedes, as I think it must—right?—that a CAT order is distinct from…a final order of removal, why isn’t that seriously problematic, turning to the first question I asked you?”
Guarnieri attempted yet again to get the justice to see things the DOJ’s way, saying, “We think it is part of the final order of removal. It is an integral and constituent part of the final order of removal, that…is distinct from the order of removal in the legal sense.”
Gorsuch seemed utterly unconvinced, however. His voice dripping with disdain for this practically mystical proposition, he quipped, “Sounds pretty metaphysical, counsel. I mean, it’s integral to and part of but distinct from…It’s like the Holy Trinity.”
Excuse him father for he has sinned?
This reference to the Christian concept of the Father, Son, and Holy Ghost—all three aspects of one God—to mock the government’s convoluted and contradictory position prompted laughter from the audience. However, it seemed to shock others on the bench, who withheld smiles. Their Baby Boomer sensibilities are perhaps slightly more delicate than those of the youngish justice Gorsuch.
He’s one of just two Gen-X jurists, after all, along with Brett Kavanaugh, and perhaps the only one with a glimmer of the age’s spirit of irreverence. Or at least what passes for that at an institution as staid and formal as the nation’s highest court, where one counselor’s use of the word “damn” at arguments last week had advocates reeling.