Supreme Court

Neil Gorsuch Says The Darnedest Things

Neil Gorsuch probably shouldn't take young lawyers into his hot tub anymore.

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(Photo by Alex Wong/Getty Images)

Over the weekend, Justice Neil “New Guy” Gorsuch appeared at an event, hosted by the American Inns of Court, geared generally around “civility” in the practice of law and took the opportunity to expound on a wide range of topics. It was a refreshing look at the justice outside of his customary surroundings — promoting a Trump hotel.

Tony Mauro of the National Law Journal was there and provided a stellar recap of Gorsuch’s many nuggets o’ wisdom, but here are just a few that stood out and provided more questions than answers:

One of the official comments elaborating on the rule reads, “The lawyer’s duty to act with reasonable diligence does not require the use of offensive tactics.” Gorsuch said, “That worries me.” The phrasing, Gorsuch explained, implies that offensive tactics, while not required, could be “a very good idea” in some instances. “Think about that.”

Alright. I’ve thought about it, and that’s dumb. The phrasing is plainly an admonition against offensive tactics. Would Gorsuch prefer a rule that forbid offensive tactics outright? That would seem to go way too far and hamstring attorneys dealing with obstructionist opposing counsel.

Not to make this a whole thing, but this off-hand remark goes to the heart of the intellectual bankruptcy of textualism. There’s a straightforward, plain meaning rule that everyone in the f**king profession understands (whether they abide by it or not), but it’s not good enough for Justice Gorsuch because he can concoct an alternate meaning. The next time someone complains about thousands of pages of regulations, place the blame squarely on those dips**ts genuflecting at the altar of textualism because they’re the ones forcing lawyers to write 50 caveats to every clause to eliminate any misinterpretation, no matter how silly.

“Inward, I was smiling,” when an adversary would accuse him or other lawyers of lying or misrepresenting the facts. “I knew it wasn’t going to work for the judge.” And as a judge, when a lawyer made similar comments, he would say, “Counsel, perhaps you can talk about the facts.” He added, “It is incumbent on judges to teach the bar that it’s not effective” to disparage adversaries.

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You mean, someone just baldly saying “they’re lying” with no effort to back that up? Sure, but how often is that happening? And why was Gorsuch so often on the wrong end of accusations of misrepresenting the record that he has all these fond memories? So. Many. Questions.

“I’m a great believer in the First Amendment. It worries me when young people today at universities are not able to express themselves,” he said. “When civility goes so far as to suppress disagreement, you’ve gone too far.”

At least he’s aware of his officially approved talking points. Some day we’re going to look back on this era and be really impressed that a bunch of 19-year-olds with placards and catchy chants are all it takes to “suppress” high-profile speakers with official platforms.

Gorsuch said law students he has taught assume that in the discovery process, there is an obligation to “hide the documents” that are most important.

Who thinks this? Didn’t Mona Lisa Vito teach us all about Brady material 25 years ago? My copy of the Civil Rules of Federal Procedure is pretty old and beat up, but I’m not finding the “Rule 26(h): Really Rogering Your Adversary.”

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That strategy can come back to haunt lawyers when the shoe is on the other foot, Gorsuch said, invoking what he called the theory of “discovery karma.” He added, “Is that how you want to be remembered, as the guy who hid the documents from the needy plaintiff or defendant?”

Don’t sweat it, Neil! If someone calls out this effort to obfuscate the facts you can just “smile inwardly.”

Speaking of sweating it…

It was also important for him and fellow Tenth Circuit judge Tim Tymkovich to spend time with their law clerks during an annual ski trip. When he praised the relationships built “in hot tubs and ski slopes,” the audience laughed, and he added, “It’s one thing to see a judge without robes ….” More laughter ensued.

Yeah. Maybe making young people sit with you half-naked isn’t the right advice these days. There’s been some pointed criticism of that sort of thing in the news.

Gorsuch Dishes on Civility, Firing Clients, Discovery Karma, and Hot Tubs With Law Clerks [National Law Journal]

HeadshotJoe Patrice is an editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news.

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