Behind the shtick, Gorsuch is performing a conservative virtue signal. In his 2016 paean to Scalia, Gorsuch called for judges “to apply the law as it is,” not to decide cases based on “moral convictions” or “policy consequences.” In theory, this gets to the heart of his predecessor’s narrow jurisprudence. In practice, it can be difficult to argue, credibly, that the answer to every single Court case is obvious from the words of a statute, or the Constitution, or the thesaurus, or whatever. Gorsuch doesn’t have Scalia’s dexterity. “It’s almost like a kid trying on his dad’s suit, and it’s just too big for him,” says David Lat, the founder of the legal website Above the Law. Or as Rick Hasen, a professor at UC Irvine’s law school, puts it, “He’s Scalia without the spontaneous wit and charm.”
The textualist monomania seems to grate especially on Ginsburg, who was famously close with Scalia. In January, after a Gorsuch dissent called out the “absurdities” of her reasoning in an otherwise deadly case about legal filing deadlines, she cheekily responded in a footnote, writing that Gorsuch’s tendentious reading of the case “conjures up absurdities” of its own. In April, she wrote a terse one-paragraph dissent critiquing Gorsuch’s “wooden” reading of a law, and in her blistering dissent in May’s big workers-rights case, she called his opinion “egregiously wrong,” invoking the infamous 1905 anti-labor decision Lochner v. New York.