Longtime Supreme Court reporter Jeffrey Toobin writes that Not-Garland is not making friends among his new colleagues. The newest, youngest, and least experienced justice apparently believes he has arrived to teach them all how to do the job that he knows how to do and they don’t. The Trump-appointed rookie has taken to lecturing the veterans and none of them, apparently, is enjoying his condescension.
A recent Toobin report for The New Yorker is titled “How Badly Is Neil Gorsuch Annoying the Other Supreme Court Justices?” That’s a question-mark headline that answers itself.
It also sets the stage for what followed: “Ginsburg Slaps Gorsuch in Gerrymandering Case.”
In less than a year, Neil Gorsuch has dominated oral arguments, lectured his colleagues, and given dubiously appropriate public speeches. Questioning Paul Smith, the lawyer challenging Wisconsin’s contorted district lines, Gorsuch made another pedantic gesture.
The argument had gone on for nearly an hour when Gorsuch began a question as follows: “Maybe we can just for a second talk about the arcane matter of the Constitution.” There was a rich subtext to this query. Originalists and textualists such as Gorsuch, and his predecessor on the Court, Antonin Scalia, often criticize their colleagues for inventing rights that are not found in the nation’s founding document. Gorsuch’s statement that the Court should spare “a second” for the “arcane” subject of the document was thus a slap at his ideological adversaries; of course, they, too, believe that they are interpreting the Constitution, but, in Gorsuch’s view, only he cares about the document itself.
Gorsuch went on to give his colleagues a civics lecture about the text of the Constitution. “And where exactly do we get authority to revise state legislative lines? When the Constitution authorizes the federal government to step in on state legislative matters, it’s pretty clear — if you look at the Fifteenth Amendment, you look at the Nineteenth Amendment, the Twenty-sixth Amendment, and even the Fourteenth Amendment, Section 2.” In other words, Gorsuch was saying, why should the Court involve itself in the subject of redistricting at all — didn’t the Constitution fail to give the Court the authority to do so?
Ruth Bader Ginsburg, who is bent with age, can sometimes look disengaged or even sleepy during arguments, and she had that droopy look today as well. But, in this moment, she heard Gorsuch very clearly, and she didn’t even raise her head before offering a brisk and convincing dismissal. In her still Brooklyn-flecked drawl, she grumbled, “Where did ‘one person, one vote’ come from?” There might have been an audible woo that echoed through the courtroom. (Ginsburg’s comment seemed to silence Gorsuch for the rest of the arguments.)
In one cutting remark, Ginsburg summed up how Gorsuch’s patronizing lecture omitted some of the Court’s most important precedents, and Smith gratefully followed up on it: “That’s what Reynolds v. Sims and Baker v. Carr did, and a number of other cases that have followed along since.” In these cases, from the early nineteen-sixties, the Court established that the Justices, via the First and Fourteenth Amendments, very much had the right to tell states how to run their elections.
The real dispute revealed here is not between liberal and conservative traditions, but rather about the meaning of texts and the reading of texts. It is the difference between fundamentalism and everything that is not that.
It thus has rather direct and precise parallels with similar disagreements about the Bible. That text, like the Constitution, is also claimed as the sole, unique possession of fundamentalists. The biblical fundamentalists, like Not-Garland, frame themselves as the champions of “conservatism” — as its only legitimate spokespeople. Thus, in their view, its not just all the supposed “liberals” who are illegitimate, but also every other conservative. This is why they can’t help lecturing liberals and conservatives alike.
If you’ve ever encountered biblical fundamentalists, even briefly, then Not-Garland’s language will be eerily familiar. You’ve heard his exact phrases before, spoken in the same condescending tone. “Maybe we can just for a second talk about the arcane matter of the Bible.” This is followed, as always, with a recitation of prooftexts excerpted from context. Crude concordance-ism is presented as a trump card that disregards and dismisses centuries of study and discussion of the very text it pretends it alone esteems.
Again, that dismissal of every other view means this is not a conservative-vs.-liberal argument, no matter how much fundies love to portray it as such. It’s a fundamentalist-vs.-non-fundamentalist argument meant to dismiss and belittle everything in the entire universe other than its own brand of reflexive fundamentalism. It dismisses every conservative tradition just as much as it does every liberal tradition. In a sense, its disdain for tradition and precedent may be more offensive to conservatives than to liberals.
That’s why, last week at the Supreme Court, Justice Ginsburg’s response was tacitly endorsed by her conservative colleagues as well as by her fellow liberals.
In response to a “biblical” fundamentalist, RBG might’ve said, “Where did the doctrine of the Trinity come from?” That would be similarly precise and surgically on-point as her response to the rookie Not-Garland, and it might even prompt a similar audible gasp from observers who understood what they were hearing. But I’m not sure that a biblical fundamentalist would understand that reply any more than I think the fundamentalist Not-Garland understood the lesson he was just provided. These are rhetorical questions they’re not able to answer because textual fundamentalism doesn’t allow or equip them to think about them.
(Yearbook photo of Not-Garland borrowed from Lawyers Guns & Money, where it is appropriately employed as a stock illustration for all N-G posts.)