Just over 30 years ago, President Ronald Reagan nominated a former Yale law professor, then serving as a D.C. Circuit judge, to the Supreme Court. His views on the meaning of the Constitution were considered by some of the political class to be iniquitous. The nominee’s constructive criticism of the mainstream of legal analysis was its failure to show allegiance to the actual language of the Constitution. “I don’t think the Constitution is studied almost anywhere, including law schools. In law schools, what they study is what the court said about the Constitution. They study the opinions. They don’t study the Constitution itself.”
Of course, the nominee was Robert Bork. His view that the Constitution had an ageless meaning was cruelly savaged by Senator Ted Kennedy. “Robert Bork’s America is a land in which women would be forced into back-alley abortions, blacks would sit at segregated lunch counters, rogue police could break down citizens’ doors in midnight raids,” and other shameful regressions would exist. Critics condemned Bork’s view that the words in the Constitution mean now what they meant when written in 1787. No living, breathing, mutating Constitution for Bork. At his death in 2012, some labeled him the “original originalist.”
The Senate rejected Bork’s nomination, but his approach to constitutional interpretation has thrived — though by no means has it conquered. Justice Neil Gorsuch in his new book explains and vigorously promotes originalism. The significance of that form of analysis is indicated by the title he chose for his book: A Republic, If You Can Keep It. Those were the words of Benjamin Franklin in explaining what the Constitutional Convention had created. The centrality of originalism to the survival of the Republic, Gorsuch writes, arises from separation of powers. If judges abandon their constitutional role of simply interpreting (though often it is not so simple) what the political branches have done, they are assuming the roles that the other branches are to perform.
Gorsuch says the book is for the general citizenry, not academics. He wants to revive and encourage “interest in the Constitution of the framers’ design and the judge’s role in it.” Even with that goal, the author gives those who are knowledgeable, imperfectly so like this subordinate federal judge, a lot to ponder. A significant part of Gorsuch’s book reprints speeches, court opinions, and other prior writings. Much new is interspersed, though.
This is not a memoir. Readers who want the details of his selection and confirmation for the Supreme Court will not be sated. One’s appetite is whetted at the beginning of the book, when Gorsuch discusses receiving the White House call, being interviewed, and being announced. Then the book’s final chapter, as the author previews it, “collects some of the statements I made during and shortly after the nomination and confirmation process.” That’s it. Justice Gorsuch may have decided that persuasively presenting his principles about the judicial role was both more appropriate and more important than recounting a recent political battle. Clarence Thomas is the one current justice who has written extensively about his confirmation controversies, but he waited 17 years to publish. As a personal aside, I too wrote about the pains and sufferings of a difficult confirmation, mine merely for a circuit court. I waited six years until the wounds had (mainly) healed.
There is just a little about his personal background. What is recounted can be charming. Gorsuch quickly describes several ancestors, including a grandfather in Denver who was a trolley-car driver, then a lawyer. This is the ancestor who had an awful voice but enjoyed using it to sing — loudly. A grandmother’s family built a small hotel near a railroad depot in Wyoming, which still stands and is used by the current generation during visits to the area.
Mom and Dad were both lawyers, though the father little enjoyed being one. What he passed on to his son was a love of the outdoors, of camping, hunting, and skiing, but of fishing most of all. Gorsuch’s mother graduated from college at age 19 and from law school at 22. She became the first female assistant district attorney in Denver, and later was a state legislator. Gorsuch’s wife is a native of England. He gives a brief description of her background and their meeting while he was studying for a doctorate in England. She agreed to marry him and move to Colorado, then fell in love with the West.
Introduced to fishing by his father, Gorsuch has considerable knowledge of its mysteries. He recounts an amusing episode with a possibly novice fly-fisherman, Justice Antonin Scalia. There was no calm casting of lures for Scalia during a visit to Colorado — “he would storm over in his waders” to a spot Gorsuch thought was promising, surely scaring any fish. An affecting photo of the two, a Supreme Court justice and his not-yet-successor, is included, neither man in waders but a lake and a boat behind them.
In Justice Scalia’s defense, he was an able hunter. The head of an elk he named Leroy which once adorned his chambers is now on the wall in Justice Gorsuch’s.
The book is divided into only seven chapters. Within most of them are previous writings by the author, including lengthy excerpts from judicial opinions. He analyzes the importance of separation of powers in one chapter and of originalism and textualism in another. A chapter on the “Art of Judging” focuses on the need for courage to strive for the correct result and not the comfortable, easy one. He argues that good intentions have led to the worst Supreme Court decisions, such as Dred Scott, which found constitutional protection for slavery in 1857, and Korematsu, which in 1944 found no constitutional barrier to imprisoning American citizens during wartime if their country of origin, Japan, had started a war with the United States. He argues convincingly that the two decisions resulted from the Supreme Court’s seeking what appeared to be the best policy results at the time, as opposed to applying the plain language of the Constitution.
It is an optimistic book, urging the avoidance of cynicism and promoting reasonable discourse on the issues that divide us. One way he has literally taught such perspectives is in a class on ethics at the University of Colorado. He asks, over at least the silent groans of many students, that they write their own obituary. Their written responses often show they are receiving what he is trying to give them, which is an understanding that what most of us, on reflection, will want to be remembered for are such things as kindness, love of family, a contribution to the world around us.
Gorsuch’s writing style is conversational, as are many of his court opinions. He leavens his descriptions of legal debates with asides such as, after admitting that letting courts update the Constitution to reach the best results was not “completely insane,” saying that many things might not be insane but are still ill-advised — a point he often makes to his teenage daughters.
In addition to using originalism to interpret the Constitution, Gorsuch promotes adoption of its close relative, textualism, to interpret statutes. Both approaches rely on the words of the relevant text as they would have been understood at the time of their creation. He acknowledges that these tools do not always provide a clear answer. Revising a Churchill quote about democracy as a form of government, he says that at the very least, originalism “is the worst form of constitutional interpretation, except for all the others.” It provides considerable determinacy; as much as humanly possible, it leaves out of judicial analysis the policy desires of judges; it allows the compromises inherent in our form of government to be upheld — Congress decides what statutes are to do, and the difficult method to amend the Constitution remains the only way revisions are made. The fact that judges are largely expected to wander free of such texts was recently, and startlingly, made apparent to me when an attorney in his oral argument stated dismissively that the only thing the other side had to support its position was the statute, while his side had the case law.
Those whom the justice most admires are identified along the way. Justices Byron White and Anthony Kennedy, for whom Gorsuch clerked, are among them. A long-ago Tenth Circuit judge, Alfred Murrah, is another, highlighted for his tireless work ethic and as a representative of the people who toil quietly in the service of country. Also receiving considerable praise are such historic figures as George Washington, John Adams, James Madison, and Theodore Roosevelt. Gorsuch quotes the segment of TR’s speech about credit belonging not to the critic but to the person in the arena, with “face marred by dust and sweat and blood,” who, through defeat or victory, is not to be found among the “cold and timid souls.” By praising both the tireless Judge Murrah and this part of TR’s legacy, Gorsuch is urging his citizen audience to strive mightily, and as he emphasizes, also calmly and respectfully, to preserve this Republic.
Three years after his confirmation defeat, Robert Bork wrote a book detailing his disagreements with the direction of the Supreme Court and explaining the benefits of originalism, closing with a lengthy narrative of his blocked path to the Court. Fortunately for Gorsuch and for the nomination process more generally, his selection was not met with the hyperbolic condemnation that Bork’s invoked. His book about originalism comes two years after his confirmation victory. Justice Gorsuch has written a temperate book, with civility shown to all. Such fairness, though, does not reduce the fervor with which he urges that we keep this country a republic.