The Supreme Court, Washington, D.C.
Sitting before a crackling fire in the roomy chambers he took over from the late Antonin Scalia, Justice Neil Gorsuch tells me that he is confident about the future — of the United States, of its “miracle” Constitution, and of the originalist judicial philosophy of which he is now one of the country’s most famous proponents.
“What we have here” in America, Gorsuch suggests, “is an incredibly robust rule of law, and a strong, if raucous, republic.” Since he was confirmed to the Court and lost his anonymity, he says, he has been “continually refreshed by knowing how many people, of every kind of description, continually come up to me and tell me how much they love the country, the Constitution.” As for originalism . . . well, he points to how far its advocates have come over the last few decades. “People say ‘Oh, originalism didn’t win every case last term. You must be despondent about originalism?’ I get that question a lot. Gosh, you’ve got to live my life!”
In law school, he tells me, “I didn’t have a professor who uttered the word. At Harvard Law School. I think I first heard the word from Antonin Scalia when he was a youngish justice, about the age I am now, visiting for a lecture that he gave.” Back then, so outré was the philosophy deemed to be “that the Harvard Law Review wouldn’t publish” Scalia’s speech; “it had to be published by the University of Chicago.” But today? “Today, we’ve come from that to the point at which an originalist can stand before the American people and the Senate Judiciary Committee and say, ‘I’m an originalist, and I’m proud to be one, and I’m happy to discuss it with you.’”
Justice Gorsuch’s animating conviction is that judges are there to understand and to enforce the Constitution as it was understood at the time of ratification, rather than to read their own views — or the views that they imagine are held by a majority of the citizenry — into the text. Or, put another way, Justice Gorsuch believes that the Constitution is a legal contract, rather than a vague and protean guidebook that should be interpreted and altered by a revising committee responsive to the democratic passions of the day. “When we depart from the original meaning of the Constitution and hand it over to judges,” he proposes, “we weaken our habit of self-government and we atrophy a muscle that Madison wanted us to exercise. It used to be that we had an amendment every ten or so years. We haven’t had an amendment since 1992. The amendments have dropped off in number since about the same time as the rise of ‘living constitutionalism.’ I don’t know if one can say that’s purely an accident or coincidence.”
Either way, Justice Gorsuch will not be helping to amend that Constitution himself. “The whole point” of his branch, he says, is to “uphold the Constitution and laws even — and especially — when they are unpopular. It would be easy for a judge to uphold the Constitution and laws when it’s popular. You wouldn’t need a judge for that. You can just get a legislator or politician to do that. The whole point of a judge is to take the slings and arrows — is to be unpopular a lot of the time. That’s my job.”
At times, Gorsuch seems surprised by how that job is imagined by the other branches, and by the press. “I lived a very anonymous and happy life in Colorado,” he recalls, “where it felt as if the rule of law was everywhere around me and everyone understood it. And then I go through the confirmation process, and I lose my anonymity and people say all sorts of things that were quite surprising to me.” For example? “The suggestion that if I ruled a way in one case, against somebody, I must dislike that entire class of persons, all while ignoring that as a judge who has decided thousands of cases, I’ve ruled for that same class of person in other cases based on different facts of a different law. That people would utter such things, and maybe even believe them, really was a shock to me.” Such entreaties, he argues, are anathema to the rule of the law and to the protection of minority rights. “Everybody who tells me, ‘Rule for this group or that group,’ or ‘You should like these people or that outcome,’ I wonder how they’d feel when they’re unpopular, when they’ve got but one lawyer on their side, and they have the law on their side, but not the mob. Where are they going to hide then?”
This theme, of the importance of protecting minority rights, is one that comes up frequently. And, in Gorsuch’s view, there is no better mechanism for that protection than the separation of powers. “This was the Madisonian insight,” he contends: “that you can make all sorts of promises on a piece of paper, and call it a ‘bill of rights,’ and it’s not worth the paper it’s written on unless you have some means to enforce it. Like any good contract, it’s only worth the enforcement mechanism it stands on. A lot of countries have bills of rights. In [my new] book, I talk about North Korea’s. It’s great! It’s got everything you want. My favorite is the ‘right to relaxation.’ I want that! It sounds great. But when power is all concentrated in one hand, it’s meaningless. It’s only as good as the whims of the dictator, the king.”
Of particular concern is the delegation of legislative power to the executive branch — a development that trades a “very public, very raucous process” in which “minority rights . . . play a special role” for “lawmaking by one person.” The U.S. Constitution, he explains, “put the legislative power in a branch full of all sorts of checks and balances within itself. Two houses, responsive to different electorates at different times, have to concur, and then get the president’s agreement, or override his veto. . . . Forget about the Senate rules! That alone puts minorities at the fulcrum of power. That’s what’s going to protect your rights at the end of the day: the vulnerable, the unpopular, the pariah.”
What happens if this system is bypassed? “You’ve bought yourself a king. Or maybe worse yet: What if the president can’t even control the executive-branch official? You’ve bought yourself an unelected king — an unresponsive-to-anybody king, who may be subject to capture, because, as you know, federal agencies can be captured by those they regulate. . . . What happens to the average person? They can’t capture the agency. So you wind up with an awful lot of law, and some of it protects interests that don’t need protection, and makes life particularly difficult for the people who can’t protect themselves on K Street.”
When this delegation of power is combined with laws that are sufficiently vague as to permit those agencies to fill in the blanks, and with a judiciary that is overly deferential to that blank-filling, the threat to liberty becomes obvious — especially when the rules change so frequently that it is hard for even the most diligent citizens to comply. “Madison recognized that if you don’t have written law, that’s an invitation to tyranny,” Gorsuch tells me. “The law is just whatever the king wants. If you have too much written law, you have a similar problem: a paper blizzard, so that nobody can be sure what their rights are. I wonder if, sometimes, we may be getting there.”
Among his other worries, Gorsuch lists “access to justice” (“How come,” he asks, “lawyers are so darned expensive and it takes so long to get to trial?”); that “it seems like everything under the law is a federal crime, and the prosecutor can pick his crime, and pick his defendant”; the state of “civic education”; and “how we interact with one another” (“It’s supposed to be a little raucous,” he suggests, including himself in the criticism, “but I worry about how we treat one another”). He is keen to add that “at the end of the day none of [the worries] overcome my fundamental optimism about the country.”
Having observed the way he talks about the Constitution, I suggest that, while he clearly feels duty-bound to uphold the document as written, irrespective of how it tallies with his personal views, he also loves it. He agrees. “Something magical happened in all of human history when our founders got together and put together this document,” he tells me. “I’m not saying it’s perfect, or was when it was written. It’s stood 27 improvements over the years, including extending the franchise and liberty to other groups that were not accounted for in the original Constitution. But I do think that something magical happened when our founders gathered.”
That magic, Gorsuch suggests, should be carefully protected. “We didn’t write much down,” he notes. “But what we wrote down was terribly important. I think that’s exactly what a constitution should be. People who fight against the original meaning of the Constitution, I think, sometimes have less of a beef with originalism, frankly, than they do with what’s in, and what’s missing from, this constitution, and want to amend, maybe, in ways that the document doesn’t provide for.”
I ask whether Americans still instinctively understand what a magnificent document they have inherited, and Gorsuch suggests that they do. Nevertheless, he seems slightly perturbed by our cultural tendency toward equivocation. “I don’t mean to sound Polyannaish,” he submits, “but I hear a lot of people tell me that they are ‘citizens of the world,’ and I really don’t know what that means. If they’re trying to tell me that they love each person and respect the dignity and worth of each individual, I’m all in. But if they’re saying that there is nothing special about the United States of America and the democracy they live in . . . About 30 percent of them say that it’s important to live in a democracy today, and I say, ‘Oh my goodness, I wish you’d think again.’ It’s unbelievably low; it used to be 70 or 80 percent, not long ago, and it’s now 30 percent. Those kinds of numbers are shocking to me.”
With the Court currently in the crosshairs, I wonder aloud whether he reads his own press, particularly that which criticizes him personally. “No,” he says. “Well, rarely. I try to read as little of that as I can get away with. I’m not going to deny mixed motives here, but the primary motive is, as a simple fact of life, I read stacks and stacks of briefs. For each case I read several feet of briefs, and then I have to read the cases in the record. I like to read a novel when I go home to bed. A good book.”
“What lasts,” he says, “is the work you do; what we put in the books. I’ve been given life tenure. Not for my comfort. I’m here to do a job.”
And that is exactly what he intends to do — irrespective of the “slings and arrows,” without reference to those who would have him “make things up,” and with a healthy respect for the “spark of genius” that informed the authors of the Constitution. This approach, which he shares with the man who once held his office, guarantees no specific results beyond a role well played. “It may not be,” he tells me with a smile as I get up to leave, “that every one of my colleagues will always make an originalist argument. But they’re always, as long as I’m here, going to have to respond to one.”
This article appears as “‘To Take the Slings and Arrows’” in the October 28, 2019, print edition of National Review.