by Neil Gorsuch
The design of our founders doesn’t just disperse power; it also has implications for how power should be exercised in each branch. Take the judicial branch. When it comes to the business of judging, our separation of powers makes clear that a judge’s task is not to pursue his own policy vision for the country, whether in the name of some political creed, social science theory, or any other consideration extrinsic to the law. Nor is it to pretend to represent (or bend to) popular will. The task of making new legislation is assigned elsewhere. As Alexander Hamilton put it, a judge’s job is to exercise “merely judgment,” not “FORCE [or] WILL.” A judge should apply the Constitution or a congressional statute as it is, not as he thinks it should be.
How is a judge to go about that job? For me, respect for the separation of powers implies originalism in the application of the Constitution and textualism in the interpretation of statutes. These tools have served as the dominant methods for interpreting legal texts for most of our history—and for good reason. Each seeks to ensure that judges honor the law as adopted by the people’s representatives, and each offers neutral (nonpolitical, nonpersonal) principles for judges to follow to ascertain its meaning. Rather than guess about unspoken purposes hidden in the hearts of legislators or rework the law to meet the judge’s estimation of what an “evolving” or “maturing” society should look like, an originalist and a textualist will study dictionary definitions, rules of grammar, and the historical context, all to determine what the law meant to the people when their representatives adopted it.
Now, sticking to the law’s original meaning doesn’t always make a judge popular or majorities happy. There are times when a faithful application of the law means that a friendless party will win and the sympathetic side will lose. That can be a hard thing for many people to swallow, and a hard thing for a judge too. But sticking to the law’s terms is the very reason we have independent judges: not to favor certain groups or guarantee particular outcomes, but to ensure that all persons enjoy the benefit of equal treatment under existing law as adopted by the people and their representatives.
Still, this tells only half the story. While our constitutional republic may be the greatest the world has known, that is no license to ignore its shortcomings. Some I’ve alluded to already and many are discussed in the chapters that follow. What happens to our experiment in self-government when we have such difficulty talking with and learning from one another in civil discussion? How can a self-governing people rule themselves if so many do not understand how our government works or the limits on its powers? How can we expect our own rights to be protected if we are not willing to respect the rights of others in return?
For judges and lawyers there are other questions, too, that maybe hit even closer to home. Why is it that cases in our civil justice system today drag on for so long, and the fees pile up so high, that many people cannot afford to bring good claims to court and others are forced to settle bad ones? How is it that in our criminal justice system the laws have grown so numerous that a prosecutor can often enough choose his defendant first and find the crime later? Over the years, I’ve worked on and written about challenges like these. I don’t begin to claim to have all the answers, but I am sure we cannot ignore the questions.
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WHY DO THE IDEAS found in these chapters matter to me? Each of us has a story and reasons to be grateful for this nation, its many blessings, and why we are drawn to its service. My story has its roots in the American West and is the product of the people there.
I grew up a short bike ride away from my grandparents, who did as much to shape me as anyone. My paternal grandfather, John, grew up in Denver when it was a small cow town. One of my favorite photos shows him and his brother on a mule in the middle of a dusty Denver road that’s now a busy boulevard. He worked his way through college as a trolley car driver, started his own law firm, and served as president of the Denver Bar Association. He cared deeply about his community and he showed it, whether it was by serving charities or lending his efforts to the National War Labor Board in World War II or to fair housing efforts in growing Denver in the years that followed. He loved his family and practical jokes too. He had a terrible voice but loved to sing. By his example, he taught me to care about my community, work hard, and make the time we have here count—and to be sure to laugh a lot along the way.
My maternal grandfather, Joe, grew up on the wrong side of town, in a poor Irish and Italian neighborhood. His father died of tuberculosis before he was born and Joe helped support his mother and sister while still a child, working as a red cap at Denver’s Union Station. But he never complained. He was a man of great faith—maybe the greatest faith of anyone I’ve known. Looking back, he even said that God was kind for taking his father so soon, because if his father had lived any longer he and his whole family likely would have died from the disease. The nuns must have seen something promising in Joe because they arranged his scholarship to college. He became a surgeon but was never above kneeling at a bedside to pray with his patients. His nickname growing up was Tuffy, and he was tough indeed. He loved this country and the opportunities it had given him, and he loved leading quizzes for his many grandchildren, asking them to name all the states, state capitals, and presidents.
My grandmothers were strong women. They had to be. John’s wife, Freda, was a Colorado rancher’s daughter. Joe’s wife, Dorothy, grew up in small-town Nebraska. Freda was fiercely independent and probably a better athlete than her husband. She helped teach me to fish. Her family came to the West as immigrants and built a small lodge, the Wolf Hotel, at a railway stop in Saratoga, Wyoming. The hotel stands today, with family photos on display in the restaurant. Her brothers ran the family ranch in northern Colorado. Their little log cabin remained there for many years with my father’s childish handprints visible in the cement outside. Dorothy raised seven children, including six strong women, in a small home. She made sure each got the best education they could: all attended college. She saw some of her daughters die before she passed, but she never lost her faith. She adored long family road trips through the Southwest and Mexico; she’d picnic by the roadside and say the rosary with her husband aloud on the drive. She and Joe even ventured all the way to the Panama Canal before the era of superhighways, sometimes driving their car down dry riverbeds, just to see if they could make it. Dry as the West is, we all knew to bring an umbrella to her summertime mountain picnics: Dorothy had an uncanny knack for attracting unwelcomed rain.
My parents learned from their parents and I learned from them both. My father served in the U.S. Army and then followed his father into the law, but his real joy came from the outdoors. He loved camping, hunting, and skiing, but fishing most of all. He’d take my brother, sister, and me on camping and fishing trips in the mountains in his ancient army surplus canvas tent that never kept its waterproofing. Frost and rain became familiar friends. Even a slight breeze would knock over that old tent, and we learned to sleep with the canvas on our faces. He loved practical jokes too. I will never forget his reaction when he went to fill his coffeepot with water early one morning in camp, bleary-eyed, only to find that my brother had invited a garter snake to spend the night inside. I don’t think I ever saw him move so fast or jump so far. Maybe his favorite day ever was when he hooked a huge trout but the dog started to get tangled in the line. Dad had two bad choices: keep going and likely lose the fish to the dog’s excitement, or put down the rod and rush to put the dog in the car and likely lose the fish while the line went slack. He chose the second option. Miraculously, the fish was still on the line when he returned and he managed to reel it in. That fish still hangs in his old fishing cabin, but the car didn’t fare so well. In his excitement, the dog chewed through all of the upholstery on the side facing the river, sending tufts of cushioning everywhere. It took my father years to get the car fixed. I still don’t know whether he waited so long because of his frugality or b
ecause he liked the memory so much. Maybe both.
My mother was brilliant and a feminist before feminism. Born in Casper, Wyoming, she graduated from the University of Colorado at nineteen and its law school at twenty-two. That was a time when almost no women went to law school. She studied and taught in India as a Fulbright Scholar and went to work as the first female lawyer in the Denver District Attorney’s Office. There, she helped start a program to pursue deadbeat dads who had failed to pay child support, long before efforts like that were routine. Her idea of daycare often meant me tagging along. She never stopped moving. When she ran for the Colorado state legislature, where she was soon voted the outstanding freshman legislator, she wore out countless pairs of shoes walking the entire district again and again. As kids, we just had to keep up. Later, she served as the first female administrator of the Environmental Protection Agency in Washington.
I will never forget introducing Louise to the family. We met during my time in England studying for a doctorate. When I asked her to marry me and move to the United States, I knew it was a lot to ask of her. But Louise was up for the adventure, coming from a family of fearless British bulldogs. Her grandmother grew up in India and remembers watching a tiger run through a neighbor’s home chasing the family dog. Louise’s grandfather served as a British pilot until he was killed in World War II. Louise’s great-uncle also served as a highly decorated pilot, even if he was also often in trouble—including for flying his superior’s plane without permission (charges were reconsidered when it came out that he managed to take down a German plane in the process), and for flying his entire squadron under Sydney Harbour Bridge to celebrate V-J Day. Louise’s other great-uncle was a paratrooper, a hero of the Battle of Arnhem, who helped lead men stranded in German-occupied territory safely across enemy lines. When Louise flew to Denver to meet the family for the first time, my father thought it would be a nice surprise to invite over much of our enormous Colorado family and some friends too. Maybe a hundred people greeted her at the house as she arrived jet-lagged from her transatlantic flight. I was afraid she might just turn around.
She didn’t and she fell in love with the West. We raised two girls along with chickens, a goat, horses, a rabbit, dogs, cats, mice, and more in our home on the prairie. When I went to court to hear cases as a judge, she often went to sort cattle with cowboys. She loves the marvelous incongruities of the West today. The annual cattle drive that closes down the busiest street in downtown Denver for a parade. The stock shows where young 4-H members like our daughters primp their barn animals with hairdryers for display. The prize bull who gets to spend a day in a temporary pen in the lobby of the fanciest hotel in town—all right next to families gathered for an afternoon tea that Louise says is as good as any in England. Seeing all this through her eyes made me love my home—and her—all the more. We shared the wonder of the national parks of Wyoming and Colorado. The proud traditions and sad history of the Native American tribes in New Mexico and Oklahoma. The Great Salt Lake and the Mormons’ inspirational migration against all the odds and much prejudice. The grit and resilience of the Kansas farmer and the state’s bloody civil war history.
The West is close to our hearts. So are those we have worked and shared our lives with there. The Tenth Circuit is a highly diverse court, with judges of enormously varied and interesting backgrounds. They live in the mountains and on the flats, near the border and in great cities; they come from fancy law schools and local ones; and no fewer than three women have served as our chief judge. The court is also rightly regarded as maybe the most collegial federal circuit in the country. Judges work hard but are never hard on one another. During the confirmation process, some of my colleagues, seeing me on television in Washington and knowing I had caught pneumonia from all the travel back and forth, said I looked too skinny. So they sent a huge basket of food to fatten me up, “with love from your Obama-appointed colleagues.” That’s the Tenth Circuit.
Louise and I loved sharing the West with my law clerks too. Some were native to the area, but others came from far-flung places. They joined us on ski trips and hikes, and most every year a trip to the rodeo. I hired clerks who demonstrated not just intelligence but interest in public service and in the West. They helped me on cases that you don’t often see in other parts of the country. Cases about the rights of Indian tribes and the assaults on their sovereign lands. Cases about renewable energy, the use of national parks and other public lands, and fights over western gold: water. The clerks became a family to Louise and me.
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THESE DAYS I SOMETIMES find myself thinking back a quarter century to a day when, as a law clerk, I was walking with my boss, Justice Byron White, along the ground-floor hallway of the Supreme Court. As we passed portrait after portrait of former justices, he asked me how many of them I could name. As much as I wanted to impress the boss, I admitted the answer was about half. The justice surprised me when he said, “Me too. We’ll all be forgotten soon enough.”
At the time, I didn’t realize what he was telling me. Justice White was not just one of the most famous men of his day but one of the most impressive. He was a World War II hero. The highest-paid professional football player of his day. A Rhodes Scholar. Before joining the bench, he served as John Kennedy’s deputy attorney general and helped desegregate southern schools. He never cared a fig when others criticized him—as many did, harshly and often, sometimes for supposedly “straying” from results they expected of him, and at other times for doing exactly what they knew he would do. How could anyone forget him? It seemed to me impossible.
Justice White’s portrait now hangs in the hallway with the others. Every time I walk by I see visitors standing before it wondering who he was. The truth is, Justice White was right and we are all forgotten soon enough. But with the passage of time I’ve come to see that this is exactly as it should be. In our conversation all those years ago, Justice White wasn’t so much lamenting a loss as speaking a truth he warmly embraced. He knew that joy in life comes from something greater than satisfying our own needs and wants. That this raucous republic is among history’s greatest experiments. And that, at the end of it all, the most any of us who believe in its cause can hope for is that we have done, each in our own small ways, what we could in its service.
1.
“A REPUBLIC, IF YOU CAN KEEP IT”
When you start a new job, your friends and family inevitably ask, “Is it what you expected?” The answer to that question is usually a mix of yes and no. It certainly has been for me.
The “no” part is pretty obvious. After all, no one can really expect or prepare for the job of Supreme Court justice. To serve the American people on our highest court is a humbling responsibility. In our history, only 114 men and women have done so.
The “yes” part may be a little less obvious. But in many ways the people and place are happily familiar. A surprising number of the Court’s employees still remember me from my days as a law clerk years ago—and all have gone out of their way to offer me a warm welcome. It is an honor to work with such dedicated public servants.
As it happens, too, three of the justices who served on the Court back then were still serving when I returned. Justice Anthony Kennedy, for whom I clerked, is rightly regarded in our profession as a model of civility and judicial temperament. It was a special joy to be able to work by his side again—and apparently the first time a law clerk and his former boss had the chance. When I was serving as Justice White’s law clerk, he retired and Justice Ruth Bader Ginsburg was appointed to serve as his successor. I remember the day my old boss passed along to his new colleague his law clerk manual, just in case she’d find it helpful in setting up her office. Shortly after my confirmation, Justice Ginsburg returned that same document to me, along with many helpful updates she had added over the years. That was quite a moment for me. I also have a distinct memory from my time as a law clerk of watching Just
ice Clarence Thomas walk from his chambers to the Justices’ Conference Room to discuss cases. He was lugging a rolling book cart filled with briefs and binders and papers, his booming laugh filling the hallways. Fast-forward and, on one of my first days as a justice, I’m walking to the Conference Room to discuss cases, and what do I see? Justice Thomas, with his book cart filled with briefs and binders and papers, and his same booming laugh.
More than all that, though, my new day job is a little like the one I shared for many years with wonderful colleagues on the court of appeals. Now, as then, the days are filled with reading briefs, listening to the arguments of lawyers, studying the law in solitude, and engaging with colleagues and law clerks. Each court, too, bears rites and rituals that serve to remind us of the seriousness of our common enterprise and the humanity of each person in it. When we conferred on cases at the Tenth Circuit, inevitably someone would volunteer to bring coffee, mugs would be passed around, and before getting down to the business of discussing cases we’d begin by asking after one another’s families. When a new member joined the court, we convened in a retreat to welcome the new judge, answer questions, express our support, and reflect on our aspirations as colleagues. Every other year, we gathered in conferences with the lawyers who regularly appeared before us to discuss the state of the circuit, along the way coming to appreciate one another more fully not just as professionals but as persons.
