Over the next few weeks/months (good heavens, I hope it doesn’t take that long), Congress is going to be reviewing Neil Gorsuch’s past judicial record and try to figure out how he might rule on cases brought before the Supreme Court.

The Washington Post decided that one particular case that Gorsuch heard during his time on the 10th Circuit Court of Appeals in Denver (back in 2011) was worth taking a look at. The case involved a 13-year-old student who was disrupting gym class by making fake burps. The student (known as “FM” in legal documents) was so out of control – or so the teacher and school officials deemed him to be – that he was actually arrested for his disruption. The student’s parents sued the school, saying that the arrest was not a reasonable response to the situation (well, duh) and the case made it up to the 10th Circuit Court.

Fake burps warrant a hearing from a circuit court? Such is the world we live in, apparently. (Can you hear me rolling my eyes from over there?)

The other judges on the court ruled that the student’s arrest was indeed justified. Judge Gorsuch was the lone dissent on the case. The WaPo has his entire dissent printed in full at the above sourcelink, but here are a few highlights (emphasis added) –

If a seventh grader starts trading fake burps for laughs in gym class, what’s a teacher to do? Order extra laps? Detention? A trip to the principal’s office? Maybe. But then again, maybe that’s too old school. Maybe today you call a  police officer. And maybe today the officer decides that, instead of just escorting the now compliant thirteen year old to the principal’s office, an arrest would be a better idea. So out come the handcuffs and off goes the child to juvenile detention. My colleagues suggest the law permits exactly this option and they offer ninety-four pages explaining why they think that’s so. Respectfully, I remain unpersuaded.

The simple fact is the New Mexico Court of Appeals long ago alerted law enforcement that the statutory language on which the officer relied for the arrest in this case does not criminalize “noise[s] or diversion[s]” that merely “disturb the peace or good order” of individual classes. State v. Silva, 525 P.2d 903, 907 (N.M. Ct. App. 1974). Instead, the court explained, the law requires “a more substantial, more physical invasion” of the school’s operations — proof that the student more “substantially interfered” with the “actual functioning” of the school. Id. at 907-08. What’s more, other state courts have interpreted similar statutes similarly. They’ve sustained criminal convictions for students who created substantial disorders across an entire school. See, e.g., State v. Wiggins, 158 S.E.2d 37, 42-44 (N.C. 1967); State v. Midgett, 174 S.E.2d 124, 127-28 (N.C. Ct. App. 1970). But they’ve also refused to hold students criminally liable for classroom antics that “momentarily divert[ed] attention from the planned classroom activity” and “require[d] some intervention by a school official.” In re Jason W., 837 A.2d 168, 174 (Md. 2003). Even when the antics required a teacher to leave her class for several minutes, In re Brown, 562 S.E.2d 583, 586 (N.C. Ct. App. 2002), or otherwise “divert[ed] the teacher or the principal from other duties for a time,” P.J.B. v. State, 999 So. 2d 581, 587 (Ala. Crim. App. 2008) (per curiam). See also, e.g., S.L. v. State, 96 So. 3d 1080, 1083-84 (Fla. Dist. Ct. App. 2012). Respectfully, I would have thought this authority sufficient to alert any reasonable officer in this case that arresting a now compliant class clown for burping was going a step too far.

Often enough the law can be “a ass — a idiot,” Charles Dickens, Oliver Twist 520 (Dodd, Mead & Co. 1941) (1838) — and there is little we judges can do about it, for it is (or should be) emphatically our job to apply, not rewrite, the law enacted by the people’s representatives. Indeed, a judge who likes every result he reaches is very likely a bad judge, reaching for results he prefers rather than those the law compels. So it is I admire my colleagues today, for no doubt they reach a result they dislike but believe the law demands — and in that I see the best of our profession and much to admire. It’s only that, in this particular case, I don’t believe the law happens to be quite as much of a ass [sic] as they do. I respectfully dissent.

Leaving aside the idiocy of a student having to be arrested for disrupting class in such a juvenile and stupid way (we can debate the rationality of that another time), I kind of adore how Gorsuch wrote his dissent. It reminds me a lot of the late Justice Antonin Scalia’s style – the deprecating wit toward the situation while also expressing sound legal judgment.

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