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Slow Burn
Becoming Justice Gorsuch | 3. A Lunch Room for Life
00:53:59
Dahlia Lithwick and Mark Joseph Stern on how Gorsuch fits into the current court, where he’s going next, and why he never took his job on the cafeteria committee seriously.
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- [00:00]
A
What if a marginal gain unlocked greater performance? What if an insight in data could change everything? At Aramco, our focus on detail helps us deliver reliable energy to millions across the world. Because margins aren't marginal. They're where we can truly push the limits of what's possible. Aramco, an integrated energy and chemicals company. Learn more@aramco.com Pool days call for cookouts and lots of laundry. This Memorial Day at Lowe's, save $80 on a Char Broil Performance Series 4 burner gas grill. Now just $199 plus get up to 45% off. Select major appliances to keep dishes, clothes and food fresh. Having fun in the sun is easy with us in your corner. Our best lineup is here at Lowe's, valid through 527, while supplies last. Selection varies by location. See associate or lowe's.com for details.
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B
I think that, you know, Gorsuch is lucky because nobody knows who he is, right? He's like the invisible man on that conservative supermajority. People know who Barrett is. People know who Kavanaugh is. They don't know who Gorsuch is.
- [01:19]
C
In this season of Slow Burn, we've aimed to change that. I'm Susan Matthews, host of Becoming Justice Gorsuch. In our first episode, you heard about where Neil Gorsuch came came from what he learned from his mother's rocky tenure in the Reagan administration and how his conservative worldview was shaped by his time on a liberal campus. He had a museum lit picture of Richard Nixon hanging in his dorm room and we all thought that was the weirdest thing in the world. Then in our second episode, we explored Gorsuch's controversial path to power and how he accepted a Supreme Court seat that that Republicans stole from Merrick Garland. I think you're allowed to talk about what happened to the last guy who was nominated in your position. Senator, I appreciate the invitation, but I know the other side has their views of this.
- [02:14]
B
Your side has your views of it.
- [02:15]
C
And Senator, judges have to stay outside of politics. We've also explored how he thinks about the law and how those convictions can lead him to unusual outcomes. Usually the stories we tell on Slow Burn are old enough that they're long over by the time we get to them. But this season is different. This story isn't over yet. Neil Gorsuch is still one of the most powerful people in America. He's 58 years old and not even 10 years into his lifetime appointment. So for this third and final episode of our series, I'm taking advantage of Slate's prodigious legal talent and interviewing the co hosts of our excellent legal podcast Amicus Mark Joseph Stern and Dahlia Lithwick. You'll recognize Mark from the series. He guided us through key moments in the ascent of Justice Gorsuch and helped us understand him as a legal thinker whose mild mannered exterior belies something entirely different.
- [03:16]
D
He is the king of arrogance mountain at the Supreme Court, and you just would not have really guessed that from his confirmation performance.
- [03:24]
C
More from Mark in a moment. Let's start with Dalia, who's covered the courts at slate for 27 years. She's been so many people's way into understanding SCOTUS, including mine. I actually started editing Dalia in 2017, right around the time Neil Gorsuch was nominated to the Supreme Court, and I wanted to find out her impressions of him. I suspect that Neil Gorsuch is a very specific type of legal guy that you are very familiar with. He's a libertarian, he's a former debater, he's someone who's obsessed with the Constitution. Tell me what you think of him and in particular, can you explain where you place him on the conservative to liberal spectrum of this court?
- [04:12]
B
Well, I start with the obligatory he's always been lovely to me. He is polite and kind and very charming. And so, like, I just want to say in that again, wholly obligatory way that he's personable, he's affable. He reminds me a tiny bit of the Holly Hunter character in broadcast news. I know I'm dating myself now who just like bursts into tears when asked, like, isn't it exhausting to be the smartest person in the room? Like, you really feel like he carries the weight of being the smartest person in the room. That mantle lies heavy on his shoulders. And you feel that. As to the question you're asking, I guess I would say this, Susan. He is not the way Justices Alito and Thomas have come to be known, just the most reflexive far right wing of the court. Right. He's more complicated than that. He sides with them a lot. He is a movement conservative, absolutely. You know, hatched in the kind of stew of some of the grievances and the deregulatory impulses of the Federalist society. But he is frequently unpredictable. There's places where he deviates, including in the Tariffs case. And so I think he's interesting in that you can't simply say, I lump him with the MAGA wing of the court that simply agrees that if Trump does it, it's Perfect. Or that if it owns the libs, it's perfect. He's vastly more complicated than that. I think his methodology is more fixed than that. I also think he is reliably going to be a part of the far right wing of the current Supreme Court for a very, very long time.
- [06:08]
C
Do you remember when he was named as Trump's first justice? Like, what was your reaction? Mark has said that he was kind of like, okay, this person isn't totally crazy pants out there. Like, he was kind of relieved. Did you have that feeling of relief of like, okay, this is somebody who believes in the concept of the rule of law?
- [06:28]
B
You know, I covered his confirmation hearing, all of it, stem to stern. I think you did too, Susan. And he was a really interesting character. He was almost like this sort of damp bath mat that you could throw over the entirety of the. That's like a. Just a really deeply weird metaphor. But go with me for a second.
- [06:49]
C
I'm with you, actually. I see where you're going. Keep going.
- [06:51]
B
Like the astonishing insult to both President Obama and to Merrick Garland and to Democrats on the Judiciary Committee. Like, the unprecedented smallness and meanness and viciousness of that. And, you know, poor Gorsuch had to stand there and act as though it hadn't happened to another well respected jurist. You know, it was just, gosh shucks, you know, I'm just lucky to be here. I can't believe they brought me up from the minors. You know, like, there was a way in which he just had a real ability to sort of sit there and be like a systems Vulcan, you know, like just, yeah, I'm just here to talk about doctrine.
- [07:39]
C
Mark, do you feel like, oh, poor Gorsuch, and he came in and calmed things down?
- [07:46]
D
I mean, I think that Dahlia is presenting sort of like how a neutral observer would interpret that sequence of events. And I completely agree with her. And I think he played the role really well. Like, you could let yourself actually forget that he was trying out for a seat that was, you know, stolen from Obama, as you said, Susan. And he did take the temperature down with this sort of Persona that he put on of the wet bath mat. It was remarkable in retrospect to see how much criticism and harsh questioning he took without any kind of angry reaction. Now that we know, like, who he really is, it must have been extraordinarily difficult for Gorsuch to stifle his instinct to snap back at the Democratic senators during his confirmation hearing.
- [08:33]
C
How do you know what he's really like now? What have you seen since I have
- [08:37]
D
attended and listened to enough oral arguments to know that he is often a self righteous bully and that he can be arrogant and smug and he's like a cat with a mouse and just like plays with his prey before devouring it. He can be notoriously a real jerk on the bench. And he's also sometimes kind of rude to his colleagues. I would say he mostly directs the arrogance toward counsel, but he can sometimes talk over his colleagues, interrupt, kind of brush off their questions, or step in in a way that kind of breaches protocol, like try to save counsel from a tough question asked by a liberal. You know, all this stuff. They all do it to some extent. But Gorsuch's attitude on the bench is very haughty in a way that stands out among a group of people who can certainly all be haughty. I mean, you have to be able to do that to become a justice.
- [09:31]
B
I just want to add one thing. It's funny. There's been a kind of cottage industry that measures how many laughs each justice gets over the course of a year. And folks may remember this sort of famously started, you know, Justice Scalia, laugh out loud, funny. I was shocked to learn that in 2025, it was justice Gorsuch that the data shows got the most laughs. But, like, when you poke at it a little, it is a lot of it, like, kind of mean.
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D
Oh, yeah.
- [10:03]
B
As people, Mark and I, who pride ourselves on, like, our side, hustle as comedians, Gorsuch's funniness isn't always funny. It's often that kind of like, poke, poke, poke that does get a laugh in the courtroom, and then it gets registered as hilarity, but it's a little bit petty.
- [10:25]
D
He will mock the attorneys before him. He will make fun of them to their faces, which seems kind of mean spirited. And he'll also put them in untenable positions. You know, the lawyers at the Supreme Court are representing clients, right? So they're sort of locked into arguments in favor of their clients that they hope will help their clients win. And Gorsuch is supposed to know that, right? Like, there's a performance element to this where you just accept that, like, the lawyer is making these arguments on behalf of their client, but he will act as though the lawyer completely and truly believes every single word out of their mouths. And then, like, ream them for daring to say something that he disagrees with. And it's like, dude, they're getting paid to make the argument. Like, you're not supposed to take it personally. You're not supposed to assume that it's what they believe in their deepest heart of heart, especially if they're, you know, from the Solicitor General's office, where they're representing the United States government. They're defending a federal law that they might not personally like, but that's their job. And Gorsuch will still just rake them over the coals. And he can just be such a bully. And so, you know, Dalia's point about the laughter is exactly right. It's nervous laughter. A lot of the time, people are uncomfortable. It's like cringe comedy to the extent that it is comedy. And even when I'm sitting at home listening, I get cold sweatshirt just thinking of being at that lectern, having to deal with Neil Gorsuch dressing me down for making an argument that it is my job to make and not just saying, oh, dear Justice Gorsuch, in fact, you are completely correct. You are the smartest. You are the wisest. You know everything. And the argument that I've been paid to make here is completely wrong. Thank you for pointing that out.
- [11:58]
C
It totally takes me back to one of the people that I talk to on the show is Liz Pleshette, who was Neil Gorsuch's freshman floormate at Columbia. And the thing that she said where I was just like, oh, my goodness, I feel this so much much, is that she used to debate him all the time in their common room. And then she said that by the end of the year, what she realized is that she was having deeply emotional reactions to it, and it was like, attacks on her, and he was just like, you know, a cat with yarn. And so I think it's just so interesting to pair that with the, you know, the curse, the difficulty of being the smartest person in the room of, like, the cross that he must bear of sitting at the bench and having to litigate all these things. And, like, he just kind of can't help himself.
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D
I don't think he's the smartest, by the way. Can I just toss that in? I don't think he's the smartest in that room.
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C
Sure. Oh, certainly.
- [12:49]
B
You know, here's where I confess, both of you know this. That, like, my college debate nemesis was one Ted Cruz, and that this exact phenomenon of somebody who likes to be in progressive spaces, right? Like, the party trick is, like, go to a pretty lefty school, and then just instead of, like, eating your meals or, like, popping popcorn and watching the Simpsons like the rest of us, just, like, bait liberal women into debating Abortion with you over and over and over again. And it bespeaks like a certain type, right? Where winning is an end in itself. There is a way to have that debate in your freshman common room. This is not that. But debating liberal women about abortion to the point where they're like, almost in tears. And this kind of prefigures a lot of the behaviors that Mark is describing today.
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C
I think it is interesting to look at the interpersonal dynamics on this court. There is, I think, very much the veneer of we all get along swimmingly and everything is fine. But I think that it is so interesting to think about. First of all, Neil Gorsuch arrives on the court after this whole dramatic situation. And he gets there and he really embraces his operating mode, which I have come to think of in my head as just like, the smarmy know it all. And he, like, comes in really hot to the court. Dalia, do you remember watching him come to the bench and being like, uh, oh, dude, like, you have to calm down a little bit. Like, what do you think the other justices think of him?
- [14:32]
B
I mean, there were two pieces of it. Mark captured the written piece really well, right? Like, oh, my God, like, you don't need a thesaurus for every single word. Like, why are you writing as though this is like a libretto for some opera? Like, just talk normal. And so I think there was the way he wrote in the first little while that, like, had people crossing their I's, which very much, by the way, maps onto your smarmy. Like, I'm the smartest guy. Like, no one has ever written suchly before. And, you know, so there was a little bit of that. And then, yeah, there has been a long standing tradition, right? Many justices have said, my God, I got onto the bench. I'm the most junior Justice. I have to sit at the end. Like, I'm like a bad kid. And they don't talk, like, at all. And sometimes it takes them months or, you know, more than months to get brave enough. That was not Gorsuch's problem. I mean, he really did come in hot. And I think there was a sense that he just didn't know his place and that there are things that you do when you are the junior justice that he didn't seem to be doing.
- [15:46]
D
There are these, like, rituals, these traditions inside the court that are meant to kind of like, keep the junior justice in their place, right? So when the justices meet for their private conference to discuss cases, if somebody knocks at the door, the junior justice has to answer It. And famously, Stephen Breyer was a junior justice for, like, many, many, many years. And the whole time he had to get up and answer the door when a messenger came. And it shows them. It's like, everybody knows you're like the new kid. You've got to do this for everybody else. Another one is that they have to sit on the cafeteria committee, which is like the court's internal committee that that sort of oversees the cafeteria. Justice Kagan famously brought in a frozen yogurt machine. Justice Kavanaugh famously brought in a pizza maker. I don't know that Justice Gorsuch ever brought in anything. I would be surprised if he attended more than one cafeteria committee meeting. Like, I cannot see him really getting into those sort of traditional, like, new guy rituals because he wanted to come in and, like we've been saying, be the smartest guy in the room. And you felt all of that on the bench just as much. And I am sure that if there was ever any pressure behind the scenes to tone it down a little bit, that he very much resented it and disregarded it because he felt like he was an equal member of the nine and he was going to make his voice heard very, very loudly. And. Well, he sure did. Look, he set a new precedent. And maybe the junior most justice should be just as active a questioner as anybody else. But it was also like the tone with which Gorsuch was like, flinging out these questions. I'm going to dominate this and that argument. And again, I don't think it's the kind of thing that the court has any kind of mechanism to police. I think that, like, it just was allowed to fester. And now here we are, where Gorsuch gets to be the bully on the bench and nobody stops him.
- [17:27]
C
We're going to take a break here. When we come back, we'll talk through perhaps the most egregious example of Justice Gorsuch being a bully on the bench with behavior that made headlines. Sotomayor did not feel safe in close proximity to people who were unmasked. Chief Justice John Roberts, understanding that in some form or other, asked the other justices to mask up. They all did, except Gorsuch. That story after the break. We'll be right back.
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A
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- [19:41]
D
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A
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- [20:06]
C
I'm here with my colleagues Mark Joseph Stern and Dalia Lithwick, and we're talking about what Justice Neil Gorsuch is like on the bench. In particular, I've been thinking about the fact that once you land on the Supreme Court, those are your colleagues for pretty much the rest of your life. So we're going to talk a little bit about how these radically different people manage to get along and churn out decisions together, starting with a scandal affectionately known as Mask Gate. I'll let Mark explain.
- [20:36]
D
Mask Gate occurred shortly after the Supreme Court returned from doing remote arguments over the telephone to sitting on the bench with reduced attendance in the courtroom. And the justices were supposed to reportedly be wearing masks. Part of this is that Justice Sonia Sotomayor has diabetes. She's immunocompromised. And so when the justices returned, all of them were wearing masks except for Gorsuch, who sits next to Justice Sotomayor. Nina Totenberg later had a report that the chief had asked all of the justices to wear masks and that they had all agreed to, except for Gorsuch, and that Gorsuch had refused. He would later say that Covid restrictions may have been, quote, the greatest intrusions on civil liberties in the peacetime history of this country. So it was like, yeah, he seems like a Covid truther, and this is not surprising. Then Justice Sotomayor issued a statement contesting the report and saying that she and Gorsuch were warm friends. So to this day, we don't really know the truth. But again, the original story by Nina Totenberg certainly has the ring of truth. Given what we know about Gorsuch, there
- [21:42]
C
is some level on which the three, quote unquote, liberal justices right now know that they're in this extreme minority forever. Thomas and Alito are way out on the other side, and they're not gettable. But like Roberts, Barrett, Gorsuch, Kavanaugh is definitely in this mix. Sometimes they have to figure out how to side with them. And do you think that that manifests in how they interact interpersonally?
- [22:06]
D
Yes, I think that the liberal justices, to varying degrees, feel like they have to wear kid gloves with the conservatives. I think Justice Sotomayor has drifted more into the Justice Kagan camp of placating and conciliating the conservatives. And probably the easiest way to do that is to be interpersonally nice to them. You know, it's probably easier to issue an apology or to, like, have lunch with them or chat with them about some book or their grandkids or whatever they do than to, like, cast a vote you don't believe in in order to make a compromise that you think will make the other side more open to a compromise. Right. And we've seen Justice Kagan and Justice Sotomayor do both of those things. It seems very, very clear that they are trying to show the conservatives in the middle that they are reasonable people, that they are willing to reach some kind of bargain, that they aren't extreme and that they aren't angry or partisan, and that, you know, they're willing to play ball. So I do think that Justice Sotomayor, in both of her public apologies, probably at least in part, thought, why would I sort of burn my credibility with the conservatives? To whatever extent I built it up, why would I let this get in the way of my relationship with them? When it's meaningless, it ultimately doesn't mean anything. It's just like a little interpersonal kerfuffle. And so I see why it's tactically wise. And if you're a three justice liberal minority, you've got to use every tool that you have to try to make a few of the conservatives see the light from time to time. And one of those tools is just being nice to them.
- [23:35]
B
I want to add, because I have to add, there is a gender valence here, for sure. For sure. And I guess I would just say, you know, who never felt like, he had to like, curry favor with Sandra Day o', Connor, Antonin Scalia. When he thought she was wrong, he just called her a dum dum. Like almost literally. Right? I mean, he had no impulse to mollify, to smooth the waters. He would be alone on the hustings saying, I am the only dissenter and I will die on that hill. So there is a way in which this 6:3 supermajority contains a minority of like three women who are trying to figure out how to move through that. Some of this is a question of sort of temperament and character. Mark's exactly right. I think that when your entire decades long lunchroom is how you get along with eight other people, you want to preserve those relationships. I'm sure that some of the justices do believe that they can bring someone over by being, being generous and kind. But I also think there is a piece of this which is that, you know, the justices are profoundly isolated from real human criticism, you know, from the person who should be their chief of staff saying like, please, please don't say that thing or don't do that thing. They just say it. And their clerks are like, you're the best, you're the best, you're the best. And so the person who might be the sort of circuit breaker doesn't exist at the court. And so a lot of dopey shit gets said.
- [25:16]
C
Totally. One person who is very comfortable right now criticizing the court, and in fact very comfortable criticizing the justices that he himself happens to have appointed to the court. Donald Trump has been on a real tear of being very mad at his justices in particular. He's been doing this since the tariffs case came down where the court found that he could not just do whatever tariffs he wanted to do. It's not looking good for his birthright citizenship case. And so I was wondering, how does somebody like Justice Gorsuch, Justice Kavanaugh, and Justice Barrett, where they were brought on by this man, in all three of them, these really intense, combative nomination processes, how do they feel about it when Trump gets up and does one of his screeds, do you think?
- [26:11]
D
I think they hate it. I think they absolutely despise it. I think it makes them deeply uncomfortable. They probably react differently. I mean, Justice Kavanaugh has been the most loyal of those three to Trump and Gorsuch and Barrett, when they ruled against him in the tariffs case and in other cases, I mean, he said their families should be ashamed of them. He went after them in a very, very personal way. I think that they Despised that. They despised that the whole thing became news. But you just have to remember, and it's so easy to forget when we're living like, moment to moments or president to president. Like, these guys are going to be on the bench for several more decades, decades, and they're going to outlive Trump, they're going to outlast Trump. Their legacy will not be entirely what they did during Trump's second term. They're going to have a much larger and more complicated legacy. And I think that all three of them don't want to sort of taint that legacy right now by setting themselves up as the sort of like puppets for Trump and Trumpism. They don't want to be known as the MAGA justices. Because MAG is going to end, right? MAGA is going to splinter. MAG is going to fade. Like, who knows what'll be going on in American politics in 2040. But there's a very real chance that all three of these justices could still be on the bench then.
- [27:21]
B
And maybe one other gloss on that, which is, of course they hate it because their entire legal career is dedicated to the proposition that they're not political actors, Right? So when Trump is like, you're political actors, you know, whether he's mad at you or not mad at you, he's putting the lie to the whole balls and strikes mythology. And that just sucks. Bad for them, it's bad for the court, Right? So, of course they don't want to be dragged into it. But I think that, you know, Gorsuch is lucky because nobody knows who he is, right? He's like the invisible man on that conservative super majority. People know who Barrett is, people know who Kavanaugh is. They don't know who Gorsuch is. And so in a really deep way, when Trump has a tantrum and Gorsuch of everybody gets off scot free, Right.
- [28:16]
C
Mark, you've thought a lot about the fact that Neil Gorsuch is strangely furthest to the left of any sitting justice and possibly any justice on Indian law. And he's extremely consistent in his rulings here. And your theory is not that this is because he's a Westerner. You have a broader theory about this, and it'll bring us into the conversation about originalism, which I'm sure is the one that every single listener is just waiting for us to have. Tell us your theory.
- [28:44]
D
Yeah, So, I mean, I don't think it's because he's a Westerner, because I don't believe that he's really a Westerner. I think, again, you know, dude went to Georgetown Prep. Like, come on, he's a Bethesda boy, basically. I think that Gorsuch has this view of the Constitution as more or less divinely inspired. He thinks it's like a perfect document. He thinks that it laid out this ideal system of government and that all of our modern ills can be attributed to deviations from the Constitution's original design. And he correctly notes that the Constitution, as originally understood, respected tribal sovereignty. The Constitution respected tribes as their own separate nations that held a serious measure of sovereignty apart from the US Government and the states. And they were supposed to be sort of dealt with as a nation to nation thing where we would have treaties with the tribes, we would recognize their own powers over their own affairs. And of course, all of that went haywire within a few decades of the Republic because the United States decided that we would rather steal their land and drive them West. And so we basically abolished tribal sovereignty. We, you know, forcibly removed many, many Native people from their ancestral lands. And then we spent many years trying to forcibly assimilate these people into Western culture and to sort of destroy their tribes and their traditions. And Gorsuch sees with remarkable clarity how bad all of that was. And I commend him for. For his writing on this, because he really does write quite poignantly about all of the horrors that we have committed as a nation against Native people. And his theory is basically this happened because we betrayed the Constitution, because we deviated from its original meaning, which was supposed to recognize the sovereignty of tribes and the power of Native people over their own affairs. And so his battle in this area is always to return us to those early days of what the Framers envisioned at the Constitutional Convention and to reject the later kind of Andrew Jackson era repudiation of tribal sovereignty and Native rights. And it's another area where, to be fair, he is kind of principled and consistent in a way that you wouldn't necessarily expect from a typical movement conservative jurist.
- [31:01]
B
I completely agree with Mark. I think, in a sense, he is the most principled, originalist. If you think about how the Framers thought about the relationship between the law and the Indian tribes, he has been truer to that. You know, in terms of consistently upholding that framing of the relationship more than anyone, and props to him. And we should note that a lot of the tribes supported his nomination to the court for that reason. They knew that and they foresaw that. I think that there's an interesting trap that Senate Democrats sprung for themselves, and it goes to the mistaken characterization of what it is that the Constitution is supposed to do. And we got into a big old wormhole in the Gorsuch nomination. And you will remember it because they kept asking him, are you gonna fight for the little guy? And you heard that from Al Franken, you heard that from Sheldon Whitehouse. I mean, all up and down the line, you know, there was like real friction over like what is the answer to that? Who is the little guy? Right. And in a like strange ontological way, I think Gorsuch has made decision about who the little guy is in his constitutional worldview that are not always wrong. Right. And so when he is, you know, deciding Bostock, like he's actually making a kind of a principled decision about who the law is meant to protect. Right. He has very fixed ideas about who the little guy is. I think he really believes that the little guy is always someone who he very cunningly and often freighted with untruths, then portrays as like this very John Wayne characterization of who the little guy is. But it's unerringly some, you know, dude, usually some dude who is just trying to get out from the strangulation of a million unfair regulations that are in Gorsuch's telling, the opposite of, of freedom. And I think one through line that you can really find is he has a story about who he's fighting for that is entirely self fulfilling based on who he decides is being overregulated or regulated in an unfair way. And so when that happens to be a little guy that you're like, hey, you know, it's not fair to, you know, exclude on the basis of sex. Right. Or, or it's not fair to treat native tribes as second class. Then that suddenly becomes, oh wait, he must be a liberal. He's not a liberal. He just has an ironclad lock in his own mind on who the little guy is.
- [34:12]
C
Yeah.
- [34:13]
D
Can I add a great example to that? There's this case that lays out exactly the dynamic Dolly is describing. It's called Bittner vs United States. I actually think he decided it correctly. It's a 5, 4 decision about this guy, Alexandru Bittner, who failed to report foreign bank accounts in violation of federal law. The question was how big his fine was going to be. And here's how Gorsuch introduces this guy. He says, born and raised in Romania, Mr. Bittner immigrated to the United States at a young age. In 1982. He worked first as a dishwasher and later as a plumber. And along the way became a naturalized citizen after the fall of communism. Mr. Bittner returned to Romania in 1990, where he launched a successful business career. But like many dual citizens, he did not appreciate that US Law required him to keep the government apprised of his overseas financial accounts, even while he lived abroad. Okay, so you think like, oh, man, it sounds like this guy really got ensnared in this kind of regulatory trap that he had no reason to know about. Like, he's a hardworking dude. Why should he be punished for this? Right? Here's the truth. This man had more than $16 million spread across 50 bank accounts in Romania, Lichtenstein, and Switzerland. He eventually failed to report as many as 272 accounts that he had mysteriously spread his many, many millions through and then tried to get out from the massive fine that the government levied against him. You really wouldn't guess that from hearing about this patriotic dishwasher who, like, escaped communism to build a career in America. And the split screen between how Gorsuch describes this guy and how the dissent by Justice Barrett describes him shows you exactly how Gorsuch just latches onto this idea. Here's the little guy. I will defend him at all costs. Like, this poor man needs me to step up for his rights. And then you read the full record and you're like, this is the little guy. If you think that millionaires are the most sort of discriminated against people in the country. And I think Gorsuch probably does.
- [36:13]
C
Yeah, totally. I mean, to go back to the book that Dalia mentioned in 2024, I think it was, he publishes this book called the Burden and Cost of Too Much Law in America, something like that. And it's chapter after chapter of these stories of these people that he is very deliberately casting as the little guy. And after it comes out, people, journalists mostly, start fact checking it. And they're like, what? Like, journalists go and find these people, and basically all of them are like, I wouldn't really have characterized my legal battle that generously toward myself as. As Justice Gorsuch did. So it's this very strange compulsion to do this. And I wonder if one of the reasons he does this is because he gets such a kick out of appearing principled. And I do believe, I think that we all believe that he has a very strong sense of, I'm an originalist, I read the text. I am a textualist. I have this theory of the law, and I apply it no matter what. He has this theory. And so I wonder if you both think that sometimes he does this because then it allows him to do the thing where he's like, I'm just following the law, and he feels like he can be internally consistent. And then it yields these totally outlandish things. Like, I think the next case, obviously, to talk about is the praying football coach, where it's just kind of like, what are you talking about here, Mark, can you outline the praying football coach story for us very briefly?
- [37:53]
D
Yes. This was about Coach Kennedy, the public school football coach who would go to the 50 yard line in the middle of games and pray very, very loudly and publicly with his own team and often the opposing team, in a way that we know from the record, made his own players feel coerced into participating because they were worried they wouldn't get good positions if they didn't pray to God. With Coach Kennedy, and he was told to stop doing this. He was penalized for a few refusing to stop. He then sued, alleging his First Amendment rights had been violated. The Supreme Court ruled in his favor. Justice Gorsuch wrote the opinion, and he completely misrepresented the facts. He claimed that Coach Kennedy was engaged in quiet personal prayer that was not creating any kind of public disruption and not coercing any students into joining him and was not doing any of the things that on the record, it was demonstrated, were happening because of this, like a huge spectacle, right? News media was there, students were rushing the field, everybody was doing these big prayers with Coach Kennedy. And Gorsuch just erased all of that and claimed that this was just one lonely, quiet man trying to whisper a little prayer obscurely to his own God.
- [39:08]
C
And my question for both of you here is when a Supreme Court justice does something like that, what is. Is the remedy?
- [39:17]
B
I mean, there's no. The remedy is what Justice Sotomayor puts in her dissent, right? She. She literally affixes a photograph of Coach Kennedy in a prayer circle surrounded by players taking the knee. This is the private, intimate prayer he's supposed to be having. I mean, you just don't see a lot of photographs, especially grainy black and white ones that look like they're from the 1950s that are appended to an opinion to sort of essentially put the lie to the majority opinion that this is just Coach Kennedy off on the sidelines whispering to his Lord.
- [40:01]
C
But here's what I mean by what is the remedy? Is that for people who are on the outside of the Supreme Court bubble, I think it's just hard to grasp, grasp that somebody who is participating in all this pageantry, who's donning this robe, who is doing this, is willing to just kind of lie like this. And I think that it's changing a little bit. Regular people are starting to be like, what is SCOTUS doing and why? And like, oh, I don't really know that I have to just say they understand the law, and I do not. How do you bridge that gap between the absurdity of what they're willing to do with the facts and the reality that anybody can see in a photograph?
- [40:48]
D
I'm making Dahlia go.
- [40:51]
B
So maybe I would just say this. The one interesting thing that Gorsuch kind of inherits from Justice Kennedy is an obsession with civility. His hearing was like a meta conversation about civility, right? How dare the Democrats not treat him with respect and civility? And this is right again in the wake of just blanking Merrick Garland in intolerable and indefensible ways. But I do think it is sort of interesting that there is a version of the conversation about civility and the court that has turned into, you must blindly respect the court. And any criticism of the Court, whether it's the shadow docket or a profound factual misrepresentation, the way we got in that Kennedy case, whatever it is, is incivil. You know, when Justice Kagan talks about civility, what she means is we listen to each other. That's not what Justice Gorsuch means when he talks about civility. When a lot of the justices, I would probably say Justice Alito above all talks about civility, what he means is you have to respect what the court says. And any criticism of the court, any attempt to call into question whatever it is, Susan, facts or the behavior of the justices, or, you know, Harlan Crowe, like, paying for your mom's house, all of that is coded as incivility. And so I think one of the turns that you're, I think, scooping at here that is really interesting is that that it used to be the case that if there were a factual error in the record, the remedy was for journalists like me and Mark to say, hey, that's not what Coach Kennedy was doing at all. But I think one of the really sort of pernicious recent developments at the court is immediately when you do that, you're called out as not just uncivil, you're also called out as, like, wanting people to go protest at Brett Kavanaugh's house. And so. So I just think it's an interesting turn. And in some ways, I carbon date that turn to Gorsuch's confirmation hearing, because that's when that language, I thought, started to be deployed in a way that was aimed at shutting down even legitimate criticism of the nominee or the court, as opposed to, oh, we really want to talk about civics.
- [43:26]
D
I'll just add, I think when you have the power to literally make up the law and then declare it into existence, it's very tempting to assert the power to make up facts and declare them into existence to make up your own reality. And it's a temptation that more than one justice has certainly fallen for. Gorsuch isn't the only one who does this. And you know, justices like Clarence Thomas make up history or butcher history all the time, like, you know, the so called originalists will use these outrageous, false historical claims to justify their conservative decisions. And we've just grown sadly used to it by this, this point. I, I think that for normal people who are frustrated by this, one little glimmer of optimism is that there is this kind of developing theory that I think is very persuasive among legal scholars that a decision rooted in objectively false facts is more vulnerable to reversal in the future. And it's certainly more vulnerable to being kind of distinguished away in the lower courts. And so, for instance, you know, if a football coach, coach went out and did what Coach Kennedy actually did in real life right now and then got fired and sued, a lower court could say, well, you weren't engaging in what the Supreme Court said was okay. The Supreme Court said it was just quiet private prayer. This was public prayer. So different case. So, you know, we're gonna go by what the Supreme Court said and we're, we're, we're just gonna follow what they actually claimed rather than, you know, what reality shows. And I think in the future you could easily see a Supreme Court say about this case. You know, I, we know the Supreme Court made this ruling, but it was built on bogus claims. It was built on objectively false facts. And so we feel that it's not really as entrenched or as stable or as legitimate as precedent, and we don't feel the obligation to follow it as precedent. And we feel it's much more vulnerable to, to just overturn. And I do think that if the court ever swings back to the center of the left, we will see a fair amount of that. And I mean, just, you know, to be clear, like the current conservative supermajority does this all the time. You know, one of Justice Alito's main claims in Dobbs was that Roe v. Wade had bogus facts and bogus history, and that made it more vulnerable to reversal. Two can certainly play at that game.
- [45:38]
C
On that little note of ominous optimism about the future, we're going to take a quick break here. When we come back, I'll ask Mark and Dalia to talk about the year and decades ahead and what to expect from Justice Gorsuch. This is Hannah Burner from Giggly Squad. Opill is the first over the counter daily birth control pill available in the U.S. let's be real. Getting a birth control prescription is not always easy and it's so much admin. In fact, about a third of women face barriers to access prescription birth control. Between scheduling appointments, missing work class or just trying to exist, it's a lot. But now Opill is putting birth control in our control. Opill is a daily birth control that's FDA approved, full prescription strength and estrogen free and 98% effective when used as directed. Grab it online or at most major retailers. No prescription or doctor's appointment needed. So if you're thinking about birth control, check out OPill to see if it's right for you. Use code GIGGLY for 25% off your first month of OPill at OK op I l l.com that's code GIGGLY P I l l.com birth control in your control. We love to see it. My perfect day has sand, salt water and friends, but my moderate to severe plaque psoriasis can take me out of the moment. Now I'm all in with clearer skin thanks to skyrizi risen Kizumab RZA, a prescription only 150 milligram injection for adults who are candidates for cystic. With Skyrizi, Most people saw 90% clearer
- [47:17]
D
skin and many were even 100% plaque
- [47:20]
B
free at four months.
- [47:21]
C
Skyrizi is just four doses a year after two starter doses.
- [47:25]
B
Don't use if allergic to Skyrizi. Serious allergic reactions, increased infections or lower ability to fight them may occur before treatment. Get checked for infections and tuberculosis. Tell your doctor about any flu like symptoms or vaccines.
- [47:37]
D
Thanks to Skyrizi, there's a nothing on
- [47:39]
C
my skin and that means everything. Ask your doctor about Skyrizi, the number one dermatologist prescribed biologic in psoriasis. Visit skyrizi.com or call 1-866-Skyrizi to learn more. We're back. I want to ask you both why you think people, regular people, should care about Gorsuch and what to watch for in the coming years with this justice.
- [48:21]
B
I mean, I guess I will say he's interesting, right? I mean I think this series proves that he's not. I don't think he's a cartoon character. You know, he's not completely predictable. You know, in a world of like, highly polarized legal thinking, sometimes he can surprise you. And I think, as we have all said, in certain interesting internal ways, he is consistent. As I said, when, you know, you asked, like, should liberals hold out hope that he's gonna be the swing justice of our time? Like, dear God, no. Because that would mean that there be four people to the right of him. Like, no. But is he going to occasionally surprise us? I think he clearly has and clearly will. And I think, as we've all suggested, and this is the basis for this podcast, he is the most misunderstood under covered. You know, he's just a guy who could be sitting there in a, like Scooby Doo costume and nobody would know because nobody pays attention. And so I think on its own terms, that becomes interesting. But I just kind of want to end where Mark and I so often end these conversations, which is, it is a catastrophic error to say that because Neil Gorsuch is the fifth or the sixth vote for this or that proposition, that that is what the law is as opposed to that is what this supermajority that was constructed in order to change the world has ruled. And so I just want people to just understand that watching how five or six justices get to where they're going is a part of the game. But thinking about how this court came to be this way has to be like the whole enchilada, which is a food, by the way, Mark, that was not introduced to the Supreme Court cafeteria on Justice Gorsuch. Just watch.
- [50:34]
D
Endorse all of that. I. I will say a couple things. First, when Gorsuch is on your side, it feels so good. Like when he's beating up counsel during oral arguments for the good guys, right? And he's like going to bat for the correct legal proposition. It's just the best feeling in the world. And I remember during this native rights case, it was about the attempt to protect native children from being adopted out by non native families. He just tore into, into the Texas Solicitor General. And you know, based on everything I've said, I should have been like, that was a breach of decorum. But I loved it because that dude deserved it and because Gorsuch was right. And like, it's just so difficult in these relatively rare occasions when Gorsuch is dead right to remember why you hate him because, like, he comes across as the righteous warrior for truth and justice and it feels weird saying that based on everything that Dalia and I have just said, that is, like, fairly critical of him. But there are cases where he is not just correct, but the most correct on the bench. And that alone makes him worth watching because those cases are sometimes extraordinarily important. And it will be key for him to not only stay correct, but to try to get the support of at least one conservative colleague and bring them over for, you know, the rare decent five to four decisions that the liberals are able to win. The other thing I'll. I'll say is that he is just such a weirdo and so idiosyncratic and so committed to doing exactly what he wants and never compromising. I mean, he's gonna stick to his guns. And I think that's one of the overarching themes of this conversation, that sometimes when he sticks to his guns, it leads the court to a really good place. And so we need to keep a lookout for the cases where Gorsuch is gettable. We need to stay optimistic that there will be times when Gorsuch remains principled. And even though he can be a kn. Nightmare on so much, a nightmare on religious freedom, a nightmare on race discrimination, affirmative action, he can be a dream on other things. And if you are a very smart, progressive lawyer right now and you are trying to figure out tactically how to move the needle on some big cases at the Supreme Court, it is possible to figure out how to craft a vehicle that could get Gorsuch. You know, you're not going to get Thomas, you're not going to get Alito. So that is where you need to be focusing on a 6:3 court. You've got to hope you can get Gorsuch and at least one of his brethren to come along for the ride. And those are the cases that can make a difference for the good guys right now.
- [53:02]
C
Thank you both so much for talking through all of this, for all of your insight and for all of your work. In particular, reading all of those opinions so most of the rest of us don't have to.
- [53:14]
D
Thanks, Susan.
- [53:15]
B
Thank you, Susan. Thanks for having us.
- [53:21]
C
This is the last episode of Slow Burn becoming Justice Gorsuch. But as we all know, Justice Gorsuch's story is far from over. He's just 58 years old, and he has this seat for life, which means there's always more to cover. So let's take a moment to talk about some news that's broken just in the last few weeks. On April 29, SCOTUS handed down a big decision in a voting rights case called Louisiana vs Calais. If you haven't heard of it, it was a 6:3 decision with all the conservatives on one side, including Gorsuch, of course, and all the liberals on the other. In the decision, the six conservatives declare Section 2 of the Voting Rights act unconstitutional. It's actually the third recent Supreme Court ruling chipping away at the Voting Rights act, but this one is more like a sledgehammer than a chisel. Section two was the part of the act that was specifically designed to ensure minority representation in Congress and lower levels of government. The April 29 ruling has cleared the way for gerrymandering that's likely to dramatically change the makeup of Congress, favoring white Republicans over black Democrats. Oh, and do you want to know something else about Section 2 of the Voting Rights Act? It was passed back in the 1980s, and one of the lawyers who worked in the Reagan administration trying to block its passage is none other than John Roberts, the chief justice of the Supreme Court. He's been trying to undo it ever since. What might be even more disturbing about this ruling is that it also asserts something very strange, something that I would have thought Neil Gorsuch himself would take issue with. It basically tells Congress that not only was its legislation, the Voting Rights act, wrong, it says they can't even try to address the supposed legal problems in a new law. They just can't legislate on this anymore. In other words, the ruling says the court and the Court alone has the right to decide these critical matters of representation in our democracy. That is not how the separation of powers is supposed to work. Work in America. So make no mistake, the conservatives on this court know just how much power they have. They are using it to change our laws, our government, and our democracy. And that's why we're going to keep covering them as the political actors they are. That essential coverage continues over the next two months. The Supreme Court is about to rule on many important cases this term, and Slate's coverage of the courts this time of year is so extensive, unflinching, and so nonstop that we gave it a name. We call it Opinion Palooza. You can catch our coverage in a bunch of places. First on our sister podcast, Amicus, where Mark Joseph Stern and Dahlia Lithwick are dropping emergency episodes when the biggest decisions come down. And also on Slate.com, where we offer incisive analysis and pull the curtain back on who's running the court, the decisions reshaping the country, and what those decisions cost the rest of us. Follow the Amicus feed wherever you get your podcasts. If you've stuck with us through this season, thank you. And now I want to ask you to become a Slate plus member. The work you've been listening to on Slow Burn and the rest of Slate's vital coverage of the this Court on Amicus and on Slate is only possible because of our members. Slate has been on this beat for nearly three decades, longer than eight of its nine current justices have served on the bench. That kind of beat experience gives Slate the depth, the context, and the perspective to make sense of this court for the people whose lives it's reshaping. It's the kind of essential work your membership pays for. Join from the Slow Burn show page on Apple Podcasts or Spotify or@slate.com SlowburnPlus and if you're already a member, on behalf of everyone at Slate, thank you again. Become a member@slate.com slowburnplus slow burn becoming Justice Gorsuch was written and reported by me. Susan Matthews, an executive produced by Mia Lobel. Hilary Fry, Mia Lobel and Evan Chung edited the show. The Slow Burn production team is Sophie Summercrad and Joel Meyer. Our legal editor is Mark Joseph Stern. Special thanks to Dahlia Lithwick and Sarah Burningham. Original music and sound design by Hannis Brown. Artwork for this season came from Natalie Matthews, Ramo and Ivy League Elise Simonez. We had production help from Merritt, Jacob, Patrick Fort, and Ben Richmond. Thank you to Slate's Katie Rayford, Caitlin Schneider, Alexandra Cole, Joshua Metcalfe, Brian Flynn, Heidi Strom Moon, Seth Brown, Greg Lavallee, Chase Felker, Jeremy Stahl, Jeffrey Bloomer, and Slate's Editor in Chief, Hilary Fry. Thanks for listening. Listening I'm Susan Matthews. The Supreme Court isn't going anywhere. Neither is Slate's coverage of it. Slate plus is how you keep it going for yourself, for us and for the Republic. We suppose members get full ad free access to Slow Burn and every Slate podcast, including our complete archive of past seasons. And your membership supports the kind of in depth court coverage you've been listening to the reporters, editors and producers who make Slate what it is every day. You can join from the Slow Burn show page on Apple Podcasts or Spotify or@slate.com SlowburnPlus.
- [59:40]
A
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