Gorsuch Takes Inside-Player Role in Second Term on Supreme Court

(Bloomberg) -- Chief Justice John Roberts did something unusual when he decided who would write a major U.S. Supreme Court opinion curbing class action lawsuits by workers: He turned to the newest justice, Neil Gorsuch.

Seven months later, Gorsuch produced a 5-4 opinion that let employers enforce agreements requiring workers to take disputes to individual arbitration proceedings.

The opinion issued Monday is the latest sign of a developing role for Gorsuch, whose first months as a justice last year were defined by assertive opinions that aligned him with arch-conservative Clarence Thomas.

Gorsuch, appointed by President Donald Trump, has been less of a bomb-thrower and more of an inside player in the court’s current term. He has shown an ability to write opinions that hold together 5-4 conservative majorities along with a willingness to occasionally align with the court’s liberal wing.

He has also begun to distinguish himself from Thomas, voting less frequently with him this term than with Roberts or Justice Anthony Kennedy, the 81-year-old swing vote who is at the center of retirement speculation.

Closer to Kennedy, Roberts

"He was acting a lot like Thomas last term," said Adam Feldman, a scholar who writes about the court on his empiricalscotus.com website. "Now he is tracking closer to Kennedy and Roberts."

The class action ruling was Gorsuch’s third 5-4 opinion in a term that still has 32 cases left to be resolved. All three opinions were assigned by Roberts, who decides which justice will write the opinion in cases where the chief justice is in the majority.

Writing in closely divided cases is a role some new justices have to wait years to assume, particularly in high-profile cases. Thomas, who joined the court in 1991, didn’t write his third 5-4 decision for seven years, according to Feldman.

For the class action case, Roberts chose Gorsuch over Thomas, who was instead assigned a unanimous decision involving accusations of false arrest made by partygoers at a vacant house.

"These assignments may simply be a consequence of how the calendar of arguments has shaken out," said Josh Blackman, a constitutional law professor at South Texas College of Law. "But it also suggests that the chief has confidence that Gorsuch can hold the majority opinion together."

Siding With Liberals

Gorsuch has also diverged from Thomas by occasionally siding with the court’s liberals on the outcome of a case, if not necessarily the reasoning.

Gorsuch provided the fifth vote to throw out a provision used to deport foreigners convicted of serious crimes because it was so vague it violated the Constitution. In a separate opinion, Gorsuch directly challenged Thomas’s suggestion that the Constitution doesn’t permit the court to strike down statutes as too vague.

"Vague laws invite arbitrary power," Gorsuch wrote. They have the effect of "leaving people in the dark about what the law demands and allowing prosecutors and courts to make it up."

The ruling drew a sharp reaction from Trump, who called on Congress to pass a law to overturn it.

Justice Scalia

Gorsuch’s reasoning drew heavily on the opinions of the man he succeeded, the late Justice Antonin Scalia, a conservative icon who would occasionally side with criminal defendants on similar grounds.

That similarity with Scalia is one reason few expect Gorsuch to be anything other than a reliable conservative, even he differs with Thomas in some respects.

Nothing Gorsuch has done this term comes as a surprise, said Leah Litman, a constitutional law professor at the University of California, Irvine, School of Law. She rejects the suggestion that Gorsuch is unpredictable or somehow "softening."

"Justice Gorsuch is exactly what he showed us he was last term," she said.

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