The case in front of Neil Gorsuch presented “an interesting constitutional question,” as he put it.
“Does [due process] require a ‘nexus’ between the United States and a non-resident alien to apply to him extraterritorially a federal criminal statute?” wrote Gorsuch, who is President Donald Trump’s nominee to succeed the late Justice Antonin Scalia on the Supreme Court. “I recommend denial.”
The case of Martinez-Hidalgo v. United States came before Gorsuch not in his current job as a federal appeals court judge but as one of dozens of cert petitions he analyzed as a Supreme Court law clerk during the October 1993 term.
Gorsuch, 26 years old at the time, was a law clerk serving Justice Anthony Kennedy as well as retired Justice Byron White.
Kennedy was among the eight members of the court at that time who participated in the “cert pool,” in which all the clerks from the participating chambers divide the thousands of petitions for a writ of certiorari filed each term, with one law clerk reviewing each and writing a memorandum recommending a grant or denial that is then shared among all the other chambers in the pool. (Justice John Paul Stevens was the only member of the court who did not participate in the cert pool at that time. Currently, Justice Samuel Alito is the only non-participant. Having at least one non-participant is considered an important check on the cert pool process.)
The extraterritoriality case involved a 1991 incident in which a U.S. Coast Guard vessel steaming in international waters about 80 miles south of Puerto Rico came upon a 26-foot “flagless” boat—one without a name or identifying numbers. The crew of the boat claimed to be from Colombia, and after getting a “statement of no objection” from the Colombian government, the Coast Guard boarded the boat and found 282 kilos of cocaine.
The boat’s crew was charged under a federal statute with possession and intent to distribute cocaine on the high seas. One of the crew members, Nicomedes Martinez-Hidalgo, challenged his arrest on the ground that there was an insufficient nexus between his activities in international waters and the United States. The defendant lost in lower courts, and thus became one of thousands of petitioners seeking review in the Supreme Court.
In an 11-page memo for the cert pool on Jan. 7, 1994, Gorsuch carefully summarized and analyzed the facts, lower-court decisions and arguments in the Martinez-Hidalgo case.“It seems clear that the [due process] issue raised by this case has broad legal significance, questioning as it does the extraterritorial reach of both Congress and the Constitution,” Gorsuch wrote. “That said, it is not at all clear that the case has (at this point) much practical significance; [petitioner] points to no large, extant class of [defendants] for whom a decision here would make any real difference.”
Gorsuch further advised the disagreement on the legal issue among the federal courts of appeals asserted by the petitioner was really “the faintest of splits” and it “dissipates on examination.” Bona fide splits on federal legal questions among the federal circuits are a key reason the court grants review of a case.
Gorsuch had one final concern. The petitioner’s “briefing at the cert stage does not bode well for merits briefing,” he wrote. “Tackling a major constitutional question with the level of representation evident in the [cert petition] … would be a risky enterprise.”
In the end, the court accepted Gorsuch’s recommendation and denied the petition.
Clerking for White and Kennedy
When Gorsuch was asked at his 2006 confirmation hearing for his nomination to the U.S. Court of Appeals for the 10th Circuit which of his previous jobs had best prepared him to join the bench, he said: “Well, I cannot help but think back to my clerkships, and most particularly my time with Justice White.”
White had retired from the court in the spring of 1993. According to some accounts at the time, White had not hired a full slate of law clerks for the term that would start in the fall of 1993 because he had an inclination to retire. It is unclear whether Gorsuch was aware of this when White hired him.
Following a tradition among retired justices, who are assigned one law clerk, White agreed to share his clerk with an active justice. Gorsuch thus became a part-time member of Justice Anthony Kennedy’s chambers.
The Supreme Court heard arguments in 99 cases during Gorsuch’s clerkship, issuing 93 full opinions.The most high-profile merits cases that term involved protest buffer zones around abortion clinics, the use of gender-based peremptory challenges in jury selection and whether a rap song incorporating parts of a Roy Orbison song constituted fair use under copyright law.
Whether Gorsuch played any significant role in advising Justice Kennedy on the term’s merits cases remains a private matter. And the amount of time he devoted to the needs of the newly retired Justice White isn’t widely known.
But Gorsuch’s cert pool memos provide a window on one key part of his clerkship. Justice Harry Blackmun, who was in his last term in 1993-94, was a member of the cert pool, like Kennedy. Blackmun preserved almost everything from his years of judicial service in his files, including clerk memos from the cert pool. Blackmun’s papers were first made publicly available at the Library of Congress in 2004. (The links to the pool memos in this story are to the Digital Archive of the Papers of Justice Harry A. Blackmun (2007), by Lee Epstein, Jeffrey A. Segal, and Harold J. Spaeth.)
Clerk memos tend to be somewhat formulaic and cautious. They perhaps reveal little about how a former law clerk might approach issues he might confront later in life as a Supreme Court justice.
“Very rarely would these provide any real indication of the author’s personal views,” said Eugene Volokh, who was a clerk to Justice Sandra Day O’Connor that term and is now a UCLA law professor and prominent legal blogger.
“You are writing a pool memorandum and your job is to recommend a grant or deny” based on a fairly objective set of criteria, said Volokh, who is a longtime friend of Gorsuch.
But the memos have been used before as fodder in high court confirmation battles, most recently during the 2010 hearing for Elena Kagan.
A few conservatives criticized Kagan for a cert memo she wrote to Justice Thurgood Marshall, for whom she clerked in the October 1987 term, regarding a school district’s race-conscious high-school-attendance rezoning plan.
Kagan, in her memo to Marshall, called the voluntary plan “amazingly sensible” and urged him to vote to deny review of the case, which the court did. One conservative testified before the Senate Judiciary Committee that Kagan’s stance would give administrators license to engage in “racial engineering.” The charge didn’t make much headway with the committee.
‘Nothing Remotely Certworthy Lurking Here’
Of some 50 Gorsuch cert pool memos found in the Blackmun papers, most involved “fact-bound” or “splitless” appeals that fell well short of the court’s normal standards for granting review.
“Habeas [petitioner] seeks error correction,” Gorsuch wrote regarding the in forma pauperis petition of a California man asking the Court to overturn his murder and robbery conviction. “All questions presented are factbound; nothing remotely certworthy lurking here. Deny.”
Gorsuch expressed some sympathy for a Texas high school student who got wrapped up in a carjacking and was sentenced to 12 years in a state penitentiary. The student was the “school’s star football athlete and had the chance to attend college on scholarship,” Gorsuch wrote. “Several teachers submitted letters attesting to [petitioner’s] character.”
The defendant’s claim of ineffective assistance of counsel, however, was “enormously fact-laden, … implicating no splits, and raising no important question of law,” Gorsuch said. “It seems to me that the sentence imposed here was horribly harsh; but to intervene would constitute error-correction alone.”
Gorsuch was less sympathetic to the cert petition of a Tennessee jail inmate who claimed he was assaulted with a broomstick by another inmate and sought to hold two jail employees liable for failing to prevent the attack. Gorsuch called the petition “frivolous” and a “clear deny on the merits.” He went on to suggest that the justices might want to deny pauper status to the petitioner based on a Supreme Court rule that permits such denials when a petition is clearly frivolous.
Gorsuch noted that the court tended to deny pauper status only to repeat offenders who were abusing the process, and that the justices seemed to have a policy of giving “one free frivolous [cert petition] before the rule will be applied against him.”
One of Justice Blackmun’s clerks, reviewing Gorsuch’s cert pool memo, urged her boss not to deny the petitioner pauper status. “He’s not a frequent filer, and he took his appeal in good faith,” the clerk wrote.
In another case, Gorsuch explored for 10 pages an Arizona prison inmate’s arguments that his mandatory “hard labor” crafting novelty belt buckles in a prison-run program qualified him as an “employee” under the Fair Labor Standards Act. A federal district court and the 9th Circuit held otherwise.
Gorsuch concluded that the inmate’s petition did not present a circuit split, as asserted, between the 9th Circuit and two other federal circuits that had ruled prisoners to be employees because they worked for non-prison entities.
“The [court of appeals] ‘split’ is more apparent than real,” Gorsuch wrote. “No [court of appeals] has held a prisoner working for the prison institution or in a prison-sponsored work program to be a FLSA employee. … Now, perhaps if [the 9th Circuit] were to go on in some future case to argue that a ‘state-structured program’ includes working for McDonald’s,” a conflict with other circuit rulings “would surely emerge.”
Gorsuch’s writing style in the memos is crisp and approachable, occasionally employing nice turns of phrase.
In a petition stemming from a labor-organizing dispute at a North Carolina chicken-processing plant, Gorsuch discussed how the U.S. solicitor general had done “an artful job” of distinguishing the case in question from a National Labor Relations Board decision known as Standard Products.
“This case and Standard Products may sit uneasily together, but they can be coaxed into getting along,” Gorsuch wrote.
He did have a penchant for using stodgy terms, such as “amongst,” “whilst,” and “unbeknownst.” One of Justice Blackmun’s clerks, in marking up one memo from Gorsuch, circled one of his uses of “whilst” in an apparent equivalent of an eye roll.
The closest Gorsuch came to recommending a grant among the pool memos came in a case in which a driver and her passenger were placed in a police car by a Florida sheriff’s deputy during a traffic stop as the deputy searched the woman’s car. The driver consented to the search of her vehicle, but “unbeknownst” to the two women, their conversation in the police car was being recorded.
The women “evidently made several tape-recorded inculpatory statements,” Gorsuch wrote. Meanwhile, the search of the car yielded a large amount of cocaine. The driver sought to suppress the recording from the police car on the ground that she had a reasonable expectation of privacy in her conversation with her friend. Two lower courts rejected that argument.
In a nine-page memo, Gorsuch explored several complications of the case and suggested that the justices “call for a response” from the respondent, a tactic used in potentially certworthy cases when a government agency has initially waived its right to respond.
“As appalling as the police behavior here was, … it does seem fairly clear that [petitioner] voluntarily consented to the search of her vehicle, thus perhaps invalidating what might otherwise have been an impermissible search,” he wrote.
But “to be safe,” Gorsuch added, “it may be wise and worthwhile to Call for a Response” to help clarify the record and the arguments. (The court denied the petition outright.)
A Star-Studded Clerk Class
What is perhaps most remarkable about Gorsuch and the cert pool is how he managed to avoid drawing petitions involving a number of hot-button issues from the 1993 term.
Gorsuch did not draw pool memo duties for a case dealing with Ohio’s judicial-bypass system for minors seeking abortion, a New Jersey case about criminal charges over a blockade of an abortion provider’s office, a case about whether a stillborn fetus has constitutional due process rights, an appeal from an anti-abortion group that was denied a booth at a Kentucky city’s Great Pumpkin Festival, and others touching on abortion.
And Gorsuch did not draw a cert petition from a group of litigants challenging the dismissal of their securities-fraud claim against the developers of the Taj Mahal Casino in Atlantic City, N.J., with the lead respondent being Donald Trump.
Those petitions went to other clerks in the cert pool. Gorsuch’s law clerk class included former U.S. Solicitor General Paul Clement (for Justice Antonin Scalia) and Judge Brett Kavanaugh (Kennedy) of the U.S. Court of Appeals for the District of Columbia Circuit, both of whom have been mentioned as potential Supreme Court picks for a Republican president.
Others in the 1993 term included Jullius Genachowski (Justice David Souter), who served as chairman of the Federal Communications Commission under President Obama; James Ryan (Chief Justice Rehnquist), now the dean of the Harvard Graduate School of Education; and Allison Eid (Justice Clarence Thomas), now a member of the Colorado Supreme Court.
“You’re feeling lucky to be around such top young lawyers from all over the country,” said Volokh.
It seems unlikely that Gorsuch was doing anything to avoid thorny cert petitions, since pool memos are assigned randomly.
As Chief Justice Rehnquist explained in a 1996 note to the clerks of that term, “pool memos are assigned to the various chambers participating in the pool on a random basis, partly because that is the easiest way to do it, and partly to avoid any temptation on the part of law clerks to select for themselves pool memos in cases with respect to which they might not be as neutral and detached as is desirable.”
While the pool memos typically have a sober and serious tone, there is one feature for which some of the clerks often have adopted a breezy or playful approach. In memos that are already two- to ten-page distillations of complicated briefs and lower court rulings (and which already also feature a one-paragraph summary), some clerks sought to abbreviate the case to just a few words or phrases following case caption.
For example, in a petition about one parent’s free exercise of religion challenge to child custody restrictions that barred him from imposing his “fundamentalist” religious convictions on his child as a condition of visitation, the pool clerk rendered the caption this way: “Robert Lange (I proselytize while I diaper) v. Elizabeth Lange (not with my kids, you don’t).”
And in a case involving a suspected drug courier who had the same name as a legendary member of the Cincinnati Reds, the law clerk provided the Hall of Famer’s career batting average home run and stolen base totals: “Searle, Clay (say it ain’t so) v. Morgan, Joe (.271, 268 HRs, 689 SBs).”
Gorsuch mostly did not employ such whimsical summaries. But in his pool memo for a case involving the longtime sponsor of the TV nature show “Wild Kingdom,” he incorporated a light-hearted reference to the show’s longtime host in this way: “Mutual of Omaha Life Insurance (What would Marlin Perkins say now?) v. Mary Dahl-Eimers.”
And in another petition, an Oklahoma man was challenging his extended sentence as a habitual felon by arguing that his name was misspelled by the government in various court papers. Gorsuch’s discussion section for that case was short and to the point: “The most hopeless of all sufficiency of the evidence challenges. Good grief.”
He rendered the caption this way: “Almer Kelley Goldsmith (get the name right!) v. Oklahoma (Ah, but a rose by any other name is still a rose).”