Justice Neil M. Gorsuch is speaking to the conservative Federalist Society as part of a political lineup of former vice president Mike Pence, Florida Gov. Ron DeSantis (R) and Donald Trump’s onetime press secretary, an appearance that comes as his fellow justices repeatedly dismiss criticism that the Supreme Court is partisan.
What Gorsuch says Friday night will only be known to the organization’s guests. The media is barred from listening to his remarks.
Gorsuch’s participation in the weekend-long event comes in the midst of a monumental time for the court as it could roll back or overturn Roe v. Wade, the 1973 decision that guarantees a woman’s right to abortion, in the coming months. The court also could be asked to rule on issues related to the House committee investigation of the Jan. 6 attack on the Capitol by a pro-Trump mob — with Pence a potential witness.
It is unclear whether Gorsuch will be paid by the group for his appearance. The Supreme Court did not respond to requests for comment; a spokesman for the Federalist Society declined to answer whether Gorsuch would be paid.
The Federalist Society is an influential nonprofit organization for conservative and libertarian lawyers that served as a pipeline for former president Donald Trump’s judicial choices, including Gorsuch. The justice will be addressing the Florida chapter at Disney’s Yacht and Beach Club Resort in Lake Buena Vista, Fla.
The conference, to be held Friday and Saturday, featured a keynote speech from Pence, who is a possible 2024 presidential candidate; and a conversation between DeSantis, who is seeking reelection and is also mentioned as a White House hopeful, and Trump’s White House press secretary Kayleigh McEnany.
One panel during the conference is titled “The end of Roe v. Wade?” Gorsuch will speak with Ethan Davis, his former law clerk, Friday at 8 p.m., during the banquet.
While Gorsuch will not participate on the Roe panel, or share a stage with the GOP leaders, his attendance with major figures close to Trump has stirred questions about the court’s impartiality and the insistence of the justices that it remains nonpartisan.
“I think we’re facing a real crisis of public confidence with respect to the Supreme Court,” said Alicia Bannon, director of the judiciary program at the Brennan Center for Justice, noting that this crisis stems partially from the fact that “we currently have a court where the ideological divides among the justices correspond perfectly to the party of the president that nominated them, which didn’t used to be the case.”
But Mike Davis, one of Gorsuch’s former law clerks and the founder of the Article III Project, an organization that worked to confirm conservative judges during the Trump years, dismissed the criticisms and defended his former boss. Davis argued that Gorsuch and other justices often participate in events similar to the Federalist Society’s conference.
“They are discussing overcriminalization, access to justice, separation of powers, and serving as a law clerk,” Davis said of Gorsuch’s banquet conversation. “The only politicians Justice Gorsuch plans to meet in Florida are the robotic presidents at Magic Kingdom.”
While it is not unusual for justices to participate in speaking engagements hosted by partisan organizations — liberal justices, for example, are often guests of progressive organizations such as the American Constitution Society — the public perception of the court’s impartiality has eroded in recent years. A September Gallup poll found that 37 percent of Americans believe the court is too conservative, while 20 percent believe it is too liberal. Only 40 percent believed the court is impartial to parties, the lowest score since 2016.
Justices have sought to dismiss the notion that the court is facing a crisis of public perception. Last September, Justice Amy Coney Barrett rejected claims that the high court is partisan during a speech at the University of Louisville’s McConnell Center — an event in which she was introduced by Senate Minority Leader Mitch McConnell (R-Ky.), who pushed through her Senate confirmation in 27 days.
“My goal today is to convince you that this court is not comprised of a bunch of partisan hacks,” said Barrett, a Trump choice and conservative justice.
Also in the fall, Justice Clarence Thomas defended the court’s independence during a lecture at the University of Notre Dame, faulting media characterizations. “If they think you are antiabortion or something personally, they think that’s the way you always will come out. They think you’re for this or for that. They think you become like a politician,” Thomas said in response to a question about public misconceptions of the court.
Liberal justices, including the retiring Stephen G. Breyer, have also dismissed notions of partiality, with Breyer saying last year that he and his colleagues are not “junior league” politicians. Breyer, in his book “The Authority of the Court and the Peril of Politics,” which was published last year, rejected the notion that the court itself, with its 6-to-3 conservative majority, is politicized.
“Political groups may favor a particular appointment,” he wrote, “but once appointed a judge naturally decides a case in the way that he or she believes the law demands. It is a judge’s sworn duty to be impartial, and all of us take that oath seriously.”
Eric J. Segall, the Ashe Professor of Law at Georgia State University College of Law, said that there’s always been a “close relationship between the executive branch and justices,” and that it is unrealistic to claim that justices have historically been nonpolitical entities. What has changed recently, however, “is the Federalist Society-American Constitution Society divide has become much more pronounced as our country’s become more polarized.”
“We’re so polarized that when Gorsuch and Thomas and [Justice Samuel] Alito rant at Federalist Society events, and when [Justice Ruth Bader] Ginsburg and [Justice Sonia] Sotomayor and Breyer ranted at ACS events, it just feels like they’re taking sides in a way that in my 30 years of being a law professor I’d never felt … before,” Segall added. “I think they should reconsider what they’re doing.”
The optics of both Barrett’s statements at the McConnell Center and Gorsuch’s appearance at an event featuring Pence, Segall said, “are really bad.”
“Supreme Court justices have to turn down like 90 percent of the events they get invited to,” Segall said. “Why don’t you pick one that’s not where Roe is being discussed, and Pence is not going?”
Carrie Severino, the president of the conservative Judicial Crisis Network and a former law clerk for Thomas, dismissed criticisms of Gorsuch’s participation as “laughable,” given that Ginsburg, Breyer and Sotomayor regularly appeared at American Constitution Society events over the past two decades.
“The attacks on Gorsuch for speaking at this event are just part and parcel of the Left’s broader effort to discredit and intimidate the Court,” Severino said in a statement to The Washington Post.
Gorsuch’s ties to the Federalist Society are deep. He was on its list of potential Supreme Court picks that Trump shared in the campaign in 2016. Leonard Leo, co-chairman and former executive vice president of the society, assisted with Gorsuch’s and Justice Brett M. Kavanaugh’s Supreme Court selection and confirmation process.
“The public doesn’t know if Justice Gorsuch is going to disclose anything that would give some sort of indication about how he’s going to rule on a case,” said Renee Knake Jefferson, the Doherty Chair in Legal Ethics at the University of Houston Law Center. “And so whether or not he does that, you have a public perception problem.”
Bannon said Gorsuch’s appearance at the Federal Society is the perfect example of why the court needs to adopt an ethics code that would dictate rules for public appearances, given that the perception of partisanship is “something that the justices need to be attuned to.”
In the first year of his presidency, President Biden formed a Supreme Court reform commission that, in December, published a report with recommendations. Among them, the report suggested that the court create a written code of ethics that “would bring the court into line with the lower federal courts and demonstrate its dedication to an ethical culture.”
Unlike other federal judges, the Supreme Court justices are not bound by a formal code of conduct, a decision Chief Justice John G. Roberts Jr. has defended by saying the justices self-police and consult the code for lower-court judges in assessing their own ethical obligations. The commission’s report found that this voluntary system may not be the best approach to conflicts of interest that may affect the public’s perception of the court.
“It is not obvious why the court is best served by an exemption from what so many consider best practice,” the report said.
Jefferson said she’d like to see an ethics code that would require all justices to disclose any time they are giving a speech, especially if they’re being paid for it.
“If an organization is paying a large speaker’s fee, that’s something that the public would want to know, because it goes to impartiality and the perception of impartiality of the court,” Jefferson said. “It’s also something litigants would want to be able to look up, to make sure that their opponent hadn’t just, a year ago, invited a justice to speak and given them $50,000 or $250,000, to speak to them.”
Segall clarified that most judicial ethics experts agree that justices should not be prohibited from participating in these types of events, or engaging with groups deemed partisan. The consensus, however, calls for more transparency around these activities.
“I don’t want Supreme Court justices hiding in their marble castle, never coming out,” Segall said. “I think the world would be a slightly better place if the American Constitution Society would host events with a conservative justice, and the Federalist Society hosted events with a liberal justice.”
Davis said Gorsuch would agree to participate in an event hosted by the ACS, which he described as the “liberal version” of the Federalist Society.
“The members have informative, good-natured debates on their different judicial philosophies,” Davis said. “Like late, great Justices Ginsburg and Scalia, Justice Gorsuch enjoys speaking with groups with differing views.”