Law & the Courts

Conversations with Judge Gorsuch

Supreme Court Nominee Judge Neil Gorsuch (Reuters: Joshua Roberts)
A lawyer recounts the wisdom of a valued mentor.

Ten years ago, I received my first advice from Neil Gorsuch. He was new to the Tenth Circuit. I was a young man working for one of his colleagues. When I said that I’d met the woman I would marry — she and I had dated for two months — a fellow clerk pronounced the prediction premature.

“Not so,” said Judge Gorsuch. He recognized that his own wife Louise was the one almost immediately after he met her at Oxford.

He and I were right.

Every year, Judge Gorsuch and Judge Tymkovich, for whom I clerked, invite their past clerks to a ski trip on the slopes of Breckenridge, Colo. I don’t ski, but I go for the conversation. Judge Gorsuch and I love the law, although we spend our time talking about books, family, and living the good life.

I am no longer too sheepish to tell him that a recent sci-fi novel has delayed my progress through The Education of Henry Adams. He is, after all, the judge who used Blackstone and The Hunger Games to explain the territorial limits of a magistrate’s authority in United States v. Krueger (2015). It is my hope that our past conversations inspired his reference to dystopian Panem as an illustration of federalism, but I suspect that his daughters deserve the credit.

We discuss my father’s health. It isn’t good. I wonder if there is a good time for any of us to go. He doubts it.

We were both saddened when Justice Scalia died last year. It was the words that, selfishly, I would miss — how Scalia’s pen enlivened the law for even his most ardent critics. What a loss, I thought.

Legal writing is populated with hacks, engineers, and artists — in descending order of prevalence. On a good day, I strive for engineer. But Justice Scalia was an artist. The country is lucky that it found the one judge to replace him who might reach the same rhetorical heights.

I have had the fortune to argue four cases before Judge Gorsuch, which is a career for most lawyers. I’ve lost before him as often as I’ve won. When you do lose, the beauty of a Gorsuch opinion is that you always know why you lost.

And he writes so clearly that a junior-high student knows why you lost, too.

Students would be wise to read his opinions. With a wry grin, they could explain to their teachers why “trading burps for laughs in gym class” shouldn’t warrant a handcuffed trip to the juvenile detention center. A.M. v. Holmes (2016) (Gorsuch, dissenting).

Judge Gorsuch is a firm believer that a nation of the people, by the people, and for the people is best guaranteed by judicial fidelity to statutory and constitutional text. He relishes diagramming the sentences that Congress has passed, as he did in United States v. Rentz (2015) (Gorsuch, concurring). An old schoolmarm rests in his grammarian’s soul.

But even for a westerner like myself, Judge Gorsuch is not perfect. 

Despite his claims to be a literate fly fisher, he has yet to work Norman Maclean into an opinion. Perhaps his failing can be corrected with a few words from A River Runs through It, words that bring Judge Gorsuch’s own prose to mind:

“All good things — trout as well as eternal salvation — come by grace and grace comes by art and art does not come easy.”

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