Magazine December 22, 2019, Issue

Neil Gorsuch’s Judicial Humility

Justice Neil Gorsuch in his chambers at the Supreme Court in Washington, D.C., September 13, 2019 (Jonathan Ernst/Reuters)
A Republic, If You Can Keep It, by Neil Gorsuch (Crown Forum, 352 pp., $30)

Not long out of law school, Neil Gorsuch was walking with his new boss, Justice Byron White, past the portraits of former justices that line the walls of the ground floor of the Supreme Court. White asked his young law clerk how many of the justices he could name. About half, Gorsuch replied. And White answered: “Me too. We’ll all be forgotten soon enough.” This self-effacing note is an unacknowledged theme of now–Justice Gorsuch’s new book, A Republic, If You Can Keep It.

The book exemplifies self-forgetfulness by offering only the lightest coverage of Gorsuch’s own biography. But the book also urges humility: on each branch of government, by touting a strict separation of powers; on judges, by defending methods of interpretation that give less play to a judge’s policy views; and on all Americans, by championing public service and civility in an age of cynicism and self-assertion.

Each chapter presents articles, judicial opinions, and speeches by Gorsuch on a common theme, prefaced by a brief overview. The first chapter discusses the value of civics and civility — of learning about our republican form of government and doing our part to advance it with respect for political rivals. As to these ideals, he fears we face a crisis.

Gorsuch intends this book to be part of his own contribution to civics education, as suggested by the next two chapters, on facets of our system that he deems essential to guarding liberty: the separation of powers among the three branches of our federal government, and the right approach to legal interpretation, which limits the judiciary in particular.

The chapter on separation of powers is the book’s most valuable contribution. Gorsuch does not simply recite the familiar but abstract slogan, committed to memory by all good legal conservatives, that dividing federal power protects liberty. He makes the point vivid with striking cases he has faced as a judge. The pattern is always the same: One branch arrogates to itself a power reserved to another. This enables it to escape the limits the other branch would have faced and exploit advantages and strengths the other branch would have lacked. And that produces just the kinds of abuse that the Framers’ careful calibration was meant to prevent.

For example, while Congress was designed to foster deliberation and broad consensus in the making of laws, the executive is equipped to act quickly and energetically in enforcing them. So when the efficient executive gets too much lawmaking power, regulations proliferate. To illustrate the potential harm, Gorsuch offers his judicial opinion about a small business that was fined nearly a million dollars for flouting regulations that weren’t in effect until years after the supposed violations had occurred. The agency imposing the fine had gotten itself mixed up, Gorsuch says, because it was unbound by the usual limits on lawmaking: It had produced so many binding regulations and guidance documents that the agency itself couldn’t keep track of them.

Gorsuch’s separation-of-powers treatment is valuable not only for its striking illustrations but also for its attention to a side of the separation-of-powers triangle less visible to the public: the judicial-executive. Executive-branch agencies today do more than exercise quasi-legislative power by making regulations to enforce open-ended statutes; they also enforce their own regulations against private parties through in-house “trials” conducted by officials who work for the same agencies, do not have life tenure, and therefore lack the independence and neutrality of federal judges. Even when an agency’s reading of a regulation or statute is later challenged in court, judges will almost always defer to the agency’s view. Hence Gorsuch’s second concern about modern administrative law: that judges have abdicated their duty to interpret the law by bowing to agencies’ often shifting and questionable readings, thereby impairing people’s rights to a neutral arbiter and to fair notice of the laws that govern them.

A more familiar form of overreach involves judges’ imposing new policies under the guise of applying the law, freed of the many hurdles imposed on Congress to protect minorities against the will of bare majorities. Though concerns about judicial overreach are more common on the right, Gorsuch shrewdly focuses on cases that should trouble progressives, in which judges have (in his view) “updated” laws to the detriment of immigrants and criminal defendants.

Since Gorsuch thinks judges will inevitably make end runs around constitutional limits on lawmaking if they stray from the proper interpretive methods, he turns next to the latter. Gorsuch defends textualism, which tells judges to “enforce a statute’s ordinary meaning at the time of its enactment,” and originalism, which directs them “to enforce the original meaning of our nation’s supreme statute,” the Constitution.

His essay on originalism condenses much scholarly reflection into a brisk defense of the judicial philosophy of over half the federal bench. Gorsuch first dispatches common objections to originalism: that it’s too rigid to deal with change, or too indeterminate to give real guidance; that it calls for an impossible historical inquiry, leads to rule by the “dead hand of the past,” pays little heed to precedent, or has awful consequences. Though he deals too quickly with the indeterminacy and consequentialist objections, his treatments of the rest are decisive. And his positive argument for originalism rests on three legs: that original public meaning is “the natural starting point” for interpreting written law; that it respects the overall design of our system (including the onerous process for amending the Constitution); and that it best serves the rule-of-law ideals of fair notice and evenhanded application of the law.

Gorsuch’s case for originalism reflects the biggest shift in originalist theory over the last quarter century — from concern for the drafters’ original intent  to a focus on the text’s public meaning when ratified. But this development has prompted a powerful response, on which Gorsuch is silent: an argument that the public meaning of some provisions is broad enough to encompass many of the outcomes most originalists would condemn. Indeed, originalism may not even forbid judges to impose their own value judgments, if it turns out that the public meaning of the text itself makes open-ended reference to values. (So there is no necessary connection between originalism and this commonly cited benefit of judicial adherence to it.) Thus, the universe of self-described originalists includes scholars such as Jack Balkin of Yale. Believing that the equal-protection clause was originally understood to block laws creating a social caste, Balkin thinks that judges applying the clause must make moral determinations about the fairness of a law’s impact on women and minorities. And on this basis, Balkin contends, a clause ratified during the presidency of Andrew Johnson requires courts to declare constitutional rights to abortion and same-sex marriage. A more complete defense of the link between originalism and judicial humility might have addressed this spin on public-meaning originalism.

Gorsuch doesn’t simply want the judiciary to stay out of other branches’ business; he wants it to play with vigor the role that it has been assigned. Thus, an entire chapter of the book addresses ways to give poor people better representation in court and to protect the procedural rights of all criminal and civil defendants in an age of plea deals and pre-trial settlements. Here Gorsuch puts the lie to the idea that regard for the Founders’ design will always have politically conservative results.

The book ends with chapters offering ethical and practical advice to lawyers and reflections on Gorsuch’s confirmation process. In these advisory and autobiographical remarks, we see the same commendations of modesty that undergird Gorsuch’s legal arguments on the roles of agencies and judges. But if its substance urges humility, the book’s voice is cheerfully self-confident and its prose forthright and clear. The result is a highly readable and unified collection of texts that have something to say to lawyers, law students, and laypeople on the left and right alike.

Yet the book is, Gorsuch says, “more of a starting than an ending point.” Its vision will be vindicated or not over the course of his career on the Court. And about that career, one thing is clear already. Matthew J. Franck recently observed that Gorsuch was the swing justice last term, breaking 4–4 ties in favor of the “other side” much more often than any of the other eight justices. So whatever one thinks of his conclusions, which have (in some areas) a strong libertarian bent, Gorsuch seems not to be taking his cues from any crowd.

The secret to that freedom may be found in the book’s central chapter, on the art of judging. It opens with an ode to Frank Johnson, an Alabama judge snubbed and deserted by friends for decisions in the 1950s and ’60s vindicating the rights of African Americans. Gorsuch marvels at Johnson’s courage before returning to the memory of Justice White showing him the portraits of justices long forgotten. Then Gorsuch, a man of preternatural confidence, pauses to celebrate that he himself will be forgotten. He ends on the rare somber note that “flattery and scorn alike are fleeting and false guides,” and perhaps he has found it easier to remember that they are false when he has recalled that they are fleeting, as his time on stage is fleeting. For courage, too, a certain self-forgetfulness is key.

This article appears as “Judicial Humility” in the December 22, 2019, print edition of National Review.

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