10th Circuit, SCOTUS

Supreme Court Smacks 10th Circuit DURING Neil Gorsuch Confirmation Hearing

What this case shows is that the text isn't clear AT ALL.

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Chief Justice Roberts would like you to simmer down. (Nati Harnik/AP)

Chief Justice Roberts would like you to simmer down. (Nati Harnik/AP)

Day 3 of the confirmation hearing for Tenth Circuit Judge Neil Gorsuch started around 9:30 a.m. At 10:00 a.m. the Supreme Court released its decision in the case of Endrew F. v. Douglas County School District. Its holding was a unanimous smackdown of a Tenth Circuit ruling. Chief Justice John Roberts wrote the opinion for the undivided court.

Neil Gorsuch was handed the ruling overturning his circuit, on his way to the bathroom during the first break at his hearing.

No. That has never happened before.

There are some important things to point out here.

1. There is no chance, no way, that the Roberts Court released this case at this time to embarrass Gorsuch. Nothing we’ve seen from John Roberts’s entire life would suggest he would do this bitchily. The Supreme Court releases cases when they are ready.

2. In fact, it’s as likely as not that the Court isn’t even paying attention to the hearings, and releasing this opinion today kind of proves it.

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3. The unanimous ruling does not overturn a decision that Gorsuch himself participated in. Gorsuch wasn’t on the three-judge panel that was overturned today.

4. BUT… Gorsuch has supported the standard that was overturned today. He has followed the Tenth Circuit precedent overturned today. This case isn’t about him, but it doesn’t have nothing to do with his jurisprudence either.

Gorsuch aside, this Endrew F. case is an important one for children with disabilities. At issue is the Individuals with Disabilities Education Act (IDEA). The law says that a school must offer children with disabilities an “individualized educational program.”

Endrew F., an autistic child in Colorado, was given such a program, but he was not making “progress” given his circumstances. His parents pulled him out of the public school and put him in a private institution, where apparently Endrew F. made substantially more progress. The parents sued to be reimbursed for the cost of their child’s education.

The Tenth Circuit, interpreting Supreme Court precedent in Board of Ed. of Hendrick Hudson Central School Dist., Westchester Cty. v. Rowley, held that the state was only required to provide an “educational benefit [that is] merely . . . more than de minimis.”

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Roberts, and in fact the whole Supreme Court, smacked that down. From the opinion:

But whatever else can be said about it, this standard is markedly more demanding than the “merely more than de minimis” test applied by the Tenth Circuit. It cannot be the case that the Act typically aims for grade-level advancement for children with disabilities who can be educated in the regular classroom, but is satisfied with barely more than de minimis progress for those who cannot.

When all is said and done, a student offered an educational program providing “merely more than de minimis” progress from year to year can hardly be said to have been offered an education at all. For children with disabilities, receiving instruction that aims so low would be tantamount to “sitting idly . . . awaiting the time when they were old enough to ‘drop out.’” Rowley, 458 U. S., at 179 (some internal quotation marks omitted). The IDEA demands more. It requires an educational program reasonably calculated to enable a child to make progress
appropriate in light of the child’s circumstances.

At least three Senators asked Gorsuch about this case during his hearing this morning. Democrats tried to hang “Gorsuch hates autistic children” on him, just like they tried to make him out to freeze truck drivers to death earlier in the week. I don’t think that’s fair. Again, Gorsuch wasn’t even directly involved in this particular case that got thumped today. More generally, I don’t know where the Democrats focus-grouped this whole “big guy versus little guy” line of attack against Gorsuch, but it’s dumb. Ain’t nobody “bigger” than the government or the state, and dealing with state power is not something that falls along liberal/conservative lines.

And yet, I do think Endrew F. is relevant to another line of argument Gorsuch has been selling, and originalists or textualists generally advocate. If you listen to Gorsuch at these hearings, you’d think interpreting the law was easy. You’d just look at the text, look at the precedent, think really good, and come to a decision, completely divorced from whatever you “had for breakfast.”

Scalia was the same way. Scalia used to act like people who disagreed with him basically couldn’t READ. As if LITERACY is why Scalia reads the text one way and Ginsburg reads the text another way.

What this case shows is that the text isn’t clear AT ALL. Here we have a law, we have Supreme Court precedent interpreting that law. We have the Tenth Circuit interpreting the Supreme Court’s interpretation one way, and the Supreme Court — unanimously — interpreted the Tenth Circuit’s interpretation as full of crap.

If Gorsuch were right, this kind of thing shouldn’t happen. Or it should be extremely rare. OR one body of judges are “not good judges” and should be removed from their positions.

Of course, this kind of thing happens all the time. Reasonable people DISAGREE about what the law says. And that is why we fight about it. That is why we need Courts. The text doesn’t magically reveal its meaning to anybody conservative enough to ask it.

The text is a starting point, but it’s not enough, not nearly enough, and anybody who tells you that it’s enough is selling you something.

Endrew F. v. Douglas County School District [Supreme Court.gov]

Earlier: The ‘Frozen Truck Driver’ Case Democratic Senators Are Hanging On Neil Gorsuch

Elie Mystal is an editor of Above the Law and the Legal Editor for More Perfect. He can be reached @ElieNYC on Twitter, or at elie@abovethelaw.com. He will resist.

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