Religious Liberty Case Brings First Supreme Test for Gorsuch

Gorsuch waited barely 10 minutes into the first of three hour-long cases before kicking off what became a long chain of questions.

The justices opened their April session with a case presenting a technical but important question about appeals from decisions by the Merit Systems Protection Board, which reviews federal employees' claims that they were wrongly fired, suspended or demoted. Gorsuch asked the worker's lawyer Christopher Landau four questions in a row about the wording of a statute, saying he was "sorry for taking up so much time".

Justice Clarence Thomas, in keeping with his customary practice, was the only justice not to speak or to ask questions during the oral argument. Justice Gorsuch filled the seat of the late Antonin Scalia, who is widely regarded as one of the most vocal justices in the history of the court. "What am I missing?"

Gorsuch's silence during Katyal's arguments is noteworthy, as the newest justice played the role of a happy antagonist throughout the rest of the day's hearings. There is no expectation at the high court that new justices are to be seen and not heard, but the 49-year-old rookie seemed to push the envelope a bit.

Democrats tried to block Gorsuch's nomination, but Republicans changed the Senate rules to keep the minority from being able to filibuster Supreme Court nominees.

"If we go down your route, and I'm writing the opinion - which I hope I'm not", Sotomayor said while glancing in the direction of Chief Justice Roberts, who generally assigns the opinions.

For a moment, it was nearly as if Gorsuch was trying to follow in the footsteps of the late Justice Scalia, an avowed textualist.

Gorsuch interjected: "No, just to continue to make it up". Gorsuch restored the conservative majority on the court.

Arguments in the case are set to start Wednesday. Gorsuch would not have been eligible to vote on cases that were heard before he was sworn in, but he could have voted and will vote on which cases to hear in the future.

This time, the justices did not add any news cases to the docket and denied dozens of legal battles the chance for a high-court argument.

Preparing for arguments is likely to be the easy part for Gorsuch, given his decade on a federal appeals court in Denver, says Alexander "Sasha" Volokh, a professor at Emory University School of Law who served as a law clerk for Sandra Day O'Connor and for Alito during his first term.

Town of Chester, New York v Laroe Estates is the case which could lead to the Colorado justice standing and walking out of the courtroom.

After Gorsuch used a lengthy back and forth with Landau to dissect the law, Justice Samuel Alito remarked that the exceedingly complicated statute could have come from the mind of "somebody who takes pleasure out of pulling the wings off flies".

  • Larry Hoffman