Gorsuch went up against Ginsburg for the second time in his short tenure by leading four dissenters last week in a long riposte to Ginsburg's opinion for a five-justice majority in the kind of complex procedural case that is Ginsburg's forte. The two justices — Ginsburg, the oldest, and Gorsuch, the youngest — had a similar face-off in a decision at the end of the previous term in a case that, like this week's, played to Ginsburg's strength and to Gorsuch's swaggering self-confidence.
Rewind the tape to recall Ginsburg's ill-advised comments last summer about the worrying prospects of a Trump presidency for the country and for the Court itself. "For the country, it could be four years," Ginsburg opined in an interview with The New York Times' Adam Liptak in mid-July as Trump was emerging as the presumptive Republican nominee. "For the Court, it could be — I don't even want to contemplate that," Ginsburg went on.
Ginsburg eventually apologized for her remarks and promised to be "more circumspect" in the future. While Ginsburg fretted about a Trump presidency, she probably expected that President Obama's choice for Scalia's seat, Judge Merrick Garland, would eventually join her on the Court. Trump's election paved the way instead for Gorsuch's nomination and eventual confirmation on a historically narrow, mostly party-line Senate vote.
Ginsburg joined the other justices for Gorsuch's oath-taking in a White House rose garden ceremony on April 10. The Washington Post published a picture of the justices at the ceremony, with a caption that noted the justices' applauding after the swearing-in. A keen-eyed reader noted on Twitter, however, that Ginsburg was in fact not applauding.
With Gorsuch barely in his third month on the Court, he took on Ginsburg in dissent in a complex case on the appellate route for a discharged federal employee to challenge an unfavorable ruling in a so-called "mixed motive" claim. Writing for a seven-justice majority in Perry v. Merit System Protection Board, Ginsburg construed the applicable statute to direct the employee's appeal — with its mix of civil service and other illegal discrimination claims — to a federal district court instead of a federal court of appeals with more deferential review.
Gorsuch apparently forgot that Ginsburg was studying Swedish civil procedure before he was even born. Undeterred, he accused Ginsburg of rewriting the statute instead of faithfully construing its convoluted text. "If a statute needs repair," Gorsuch wrote in a snarky dissent joined by Justice Clarence Thomas, "there’s a constitutionally prescribed way to do it. It’s called legislation."
When the new term opened, Gorsuch and Ginsburg were at it again. Gorsuch skeptically asked during the Oct. 3 arguments in the Wisconsin gerrymandering case, Gill v. Whitford, about the source of the Court's authority to review state legislative district maps. As Jeffrey Toobin noted in The New Yorker, Ginsburg answered with a none-too-subtle bench slap. “Where did ‘one person, one vote’ come from?” Ginsburg asked, in an unmistakable reference to the Court's early decisions from the 1960s allowing federal court challenges to malapportioned state legislatures.
Fast forward to last week's decision in Artis v. District of Columbia [Jan. 21]. The issue was how to interpret another complex federal statute: one that "tolled" the statute of limitations on a plaintiff's state law claim while the claim was pending in a federal court as related to a distinct federal law claim. The law, 28 U.S.C. §1367(d), gave a plaintiff 30 additional days to file in state court after a federal court dismissal of the federal claim.
Stephanie Artis, the discharged D.C. health inspector, lost her federal court case and then refiled her claims under D.C. law in D.C. Superior Court, 59 days after the dismissal of her federal court case. The District argued and the D.C. courts agreed that Artis had filed too late, but Ginsburg wrote for a 5-4 majority in holding that the District's three-year statute of limitations had been "held in abeyance" — that is, "tolled" — while her case was in federal court.
Ginsburg said she was following the "dictionary definition" of "tolled," but the committed textualist Gorsuch instead read the federal law to provide a 30-day grace period instead of stopping the clock on the District's three-year statute of limitations. The case, he said, represented a constitutionally dubious "intrusion" on "traditional state functions." Ginsburg countered by accusing Gorsuch of "unsettling" the definition of "tolled" in his interpretation of the act and by citing an earlier precedent that described the federal provision as "conducive to the due administration of justice in federal court."
Gorsuch's opponents made much during the confirmation fight of Gorsuch's dissenting opinion in what came to be called the "Frozen Trucker Case." In that case, he would have narrowly interpreted a federal truck safety law so as to leave a stranded trucker with no legal alternative to risking freezing to death while waiting for his company to send a rescue.
Tellingly, Gorsuch's two dissents so far in argued cases — in Perry and now in Artis — have both sought to impose his narrow construction of federal statutes in a way to disadvantage workers challenging adverse personnel actions. Gorsuch answered his critics at the Senate confirmation hearings by insisting that there were "plenty of" cases where he had ruled in favor of the proverbial "little guy." At the Supreme Court, however, so far: not so much.
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