by Neil Gorsuch
At the Supreme Court, the rituals are different but the point is the same. We eat lunch together regularly and share experiences and laughs along the way (Justice Stephen Breyer seems to possess an endless reservoir of knock-knock jokes). We flip burgers together at the Court’s annual picnic and celebrate birthdays and the holidays with song (always enthusiastically if not always melodically). We welcome employees’ children in our chambers for trick-or-treating as they parade costumed around the building. Every justice at some point in the year sits down for lunch with the law clerks of every other justice. And whenever we gather for work, no matter how stressful the moment, each justice shakes the hand of every other justice. That practice dates back to the late nineteenth century and may seem a small gesture, but those thirty-six handshakes can break the ice and lead to kind words or a personal story. More recently, Justice William Rehnquist introduced an end-of-term party in which our law clerks put on a skit whose primary purpose seems to be to rib each of the justices good-naturedly. When he wrote to Chief Justice Warren Burger proposing the idea, Justice Rehnquist reportedly quipped, “I should think we could have a very enjoyable evening out of it”—and we do. At the gathering, there’s also a contest where the law clerks try their hand at trivia questions about the Court, its cases, and its history. In front of all the Court’s employees, the Chief Justice grills the clerks with questions like “What phrase is inscribed on the back of the Supreme Court Building?” (“Justice the Guardian of Liberty”) and “Where and when did the first meeting of the Supreme Court take place?” (The Royal Exchange in New York City in February 1790). Simple traditions like these help renew our mutual respect and affection even, and especially, when we are unable to agree on the work at hand. They help ensure, too, that as a Court we never lose sight of our shared history.
My worry is that in our country today we sometimes overlook the importance of these kinds of bonds and traditions, and of the appreciation for civility and civics they instill. The problem can be summed up in a few numbers. According to polling by the Woodrow Wilson National Fellowship Foundation, 60 percent of Americans would flunk the U.S. citizenship test. In fact, it seems only one state—Vermont—has a majority of people who could pass it (and even then, many only with a D). Polling by the Annenberg Public Policy Center suggests that half of Americans don’t know that freedom of speech is protected by the First Amendment. And, yes, according to a survey by the American Council of Trustees and Alumni, it seems about 10 percent believe Judith Sheindlin serves on the Supreme Court. You may know her better as Judge Judy. Meanwhile, a recent study, Civility in America, indicates that nearly three-quarters of Americans believe the country is suffering from a crisis in civility. A quarter have reported enduring cyberbullying or incivility online. About the same percentage have transferred children to different schools because of incivility. At the same time, other people are actually calling for an end to civility. They say that civility is a coward’s virtue and that more anger is needed—that the stakes are too high and the ends justify the means.
But a government of and by the people rests on the belief that the people should and can govern themselves—and do so in peace, with mutual respect. For all that to work, the people must have some idea how their own government operates—its essential structure and promises, what it was intended to do and prohibited from doing. We must, as well, be able to talk to one another respectfully; debate and compromise; and strive to live together tolerantly. As Lincoln put it in far more trying times, “We must not be enemies. Though passion may have strained, it must not break our bonds of affection.” History teaches what happens when societies fail to pass on civic understandings and come to disdain civility: Civilization crumbles. Europe in the twentieth century had people, too, who, seeking to remake the social order in the vision of their ideology, thought the stakes of the day were too high to tolerate discourse and dissent. They also believed the ends justified the means, and it didn’t end well.
None of this means, of course, that we are destined for the same path. The essential goodness of the American people is a profound reservoir of strength, and this nation has overcome much graver challenges time and again. But we should never ignore the fact that republics have a mixed record in the history books. Our blessings cannot be taken for granted and need constant tending. As Franklin said, we have been given a republic, if we can keep it. During my first year in office, I decided to make the challenges we face when it comes to civics and civility the focus of my public appearances. The two speeches that follow are examples.
PASSING THE TORCH
Soon after my appointment to the Court, I was asked to speak to students and teachers at the William J. Hughes Center for Public Policy at Stockton University. The center is named for a friend and former congressman and it seeks to nurture interest in public service. Before turning to discuss civics and civility, I was asked to offer a few observations about my transition to the Court. Over the course of my first year, I gave versions of this talk to many groups; what follows represents where the speech stood by the year’s end.
They say it’s the everyday things that matter most. So when I recently moved my office from Denver to Washington, I spent a little time thinking about what I wanted on the walls. Unsurprisingly, my office bears personal reminders of family, friends, and my home in Colorado. But professionally, I wondered, who did I want looking down on me and who did I want to look up to every day?
For starters, I knew that I wanted a reminder of the man who preceded me on the Court, Antonin Scalia. Maybe above all, I admire his intellectual humility. He didn’t claim the right to rule the country based on his personal preferences about how society should “evolve.” Bring him evidence about what the written words on the pages of the law books mean—evidence from the law’s text, structure, and history—and you could win his vote. I hope that my approach to judging on the Court will share at least that much in common with his. And, as it turns out, I wound up with a pretty unusual reminder of the man. Some years ago on a hunting trip, Justice Scalia bagged an enormous elk that he proudly displayed in his office at the Court—even going so far as to name him Leroy. Leroy is so huge that, after the justice passed, it seems he was destined to become homeless, much too much for anyone’s living room wall. And then someone got the idea that Leroy might make an unusual welcome-to-the-neighborhood gift for me. So it was that I was invited to a Scalia law clerk reunion at the Court and the great elk was rolled out and duly presented. And the truth is, I am delighted to share space with Leroy because it happens that we share a few things in common: We are both native Coloradans. Neither of us will ever forget Justice Scalia. And we’ve both been crated and jumbled across the country to serve out our remaining time on display at the Supreme Court of the United States.
I never went hunting with Justice Scalia, but a few years ago I did fly-fish with him. It’s a sport I’ve loved since I was a child growing up in Colorado. The peace and time in nature are for me restorative. When you’re in the Rockies, your mind tends not to wander elsewhere. But I soon came to learn that, while we might hold similar views on judging, Justice Scalia and I held very different views about fishing. Where I would suggest, say, gently unfurling a line in the direction of a rising trout, Justice Scalia preferred another approach: lashing the stream with the enthusiasm of a son of Queens. When I pointed to a spot likely to harbor trout, instead of stalking slowly in that direction he would storm over in his waders, look around, and then exclaim, “But you said there would be fish here!” As indeed there had been….
Leroy is joined in my new chambers by other reminders. One is a portrait of Justice John Marshall Harlan. The first Justice Harlan was born in Kentucky in 1833, served in the Union Army during the Civil War, and then sat as an associate justice on the Supreme Court from 1877 until he died in 1911—nearly thirty-four years, one of the longest tenures in the Court’s history. Justice Harlan was often called the Great Dissenter. And tha
t’s a title he earned. His most important dissent came, of course, in Plessy v. Ferguson. We rightly remember Plessy as a stain on the Supreme Court’s history. There, the Court upheld state-imposed racial segregation. Only Justice Harlan refused to sign the Court’s opinion. Now, Harlan came from a family of slave owners and at one point he’d been a pro-slavery politician. But when as a judge he was charged with interpreting the Fourteenth Amendment, he correctly identified its original public meaning, recognizing that the segregation of African-Americans is not the equal protection of the laws. His dissent likely did not win him many friends back in Kentucky, and his portrait depicts a dispirited man; no doubt following the written law in the face of great public pressure is sometimes a lonely business. But some of Justice Harlan’s words still sing today. Like these: that “in view of the Constitution, in the eye of the law, there is in this country no superior, dominant, ruling class of citizens. There is no caste here. Our Constitution is color-blind, and neither knows nor tolerates classes among citizens….The humblest is the peer of the most powerful.”
Powerful words. They made an impression on me the first time I read them as a student, and they stick with me today. Indeed, the promise of equal treatment under law may be the most radical promise in all our laws—or in the history of law. And Justice Harlan’s words—that under our Constitution “[t]he humblest is the peer of the most powerful”—echo the oath federal judges must take before assuming the bench. It’s an oath dating all the way back to the Judiciary Act of 1789 in which each of us pledges to “administer justice without respect to persons, and do equal right to the poor and to the rich” alike. That ancient oath and Justice Harlan serve for me as a reminder of those vital commitments.
If Justice Harlan is a reminder of my duties to the Reconstruction Amendments and the judicial oath, another portrait in my chambers—of James Madison—serves as a reminder of my obligation to the original Constitution and to the separate and constitutionally prescribed oath judges take to “support and defend the Constitution of the United States” and to “bear true faith and allegiance to the same.” Now, Madison was a bit of an overachiever when it came to the Constitution. He arrived in Philadelphia for the Constitutional Convention about three weeks early and used that time to wrangle up support for his Virginia Plan, which became the backbone of the Constitution. But he wasn’t done yet. Madison also took the lead in drafting the first ten amendments to the Constitution, what we know as the Bill of Rights. Add to this the fact that, when he died in 1836, he was the last surviving signer of the Constitution. And that’s not all. One of the amendments he had proposed along with the ten that became the Bill of Rights hung around until it was finally ratified as the Twenty-seventh Amendment in 1992 (more on that in a moment). So it is that Madison was the Father of the Constitution, Father of its first amendments, and Father of its most recent amendment. Today, we enjoy a robust debate about what a judge’s duty to the Constitution entails. But to me, originalism supplies much of the answer. Originalism is simply the idea that when interpreting the Constitution, we should look to text and history and how the document was understood at the time of its ratification. For your constitutional rights should not be subject to judicial revision. They should mean the same today as they did then and they should never be diminished by courts or judges. Madison is there to remind me of that.
A final reminder in my office is a bust of Byron White. The Supreme Court’s curator found it in a storage unit and I asked if I might display it in my office because it holds a special memory. One day during my stint as a law clerk to the justice, the artist who had prepared the bust came to chambers to present a soft clay model for the justice’s approval before the final bronze casting. The artist was very nervous: He had worked hard and the model was fragile. He spent a great deal of time carefully unwrapping it and getting everything just right before the justice could take a peek. Finally, he called us in. The justice was clearly impressed. But there was one problem, he said: His nose hadn’t been that straight since the 1930s. So he walked over and pushed his thumb into the soft clay bridge of the nose. I thought the artist was going to have a heart attack. But the artist survived and so did the dent on the nose in the final bronze (if maybe with a little later artistic improvement). For me, this memory is a reminder of what Byron White knew and lived: that while this is an important job, it is only a job and we are only imperfect people. So do the best you can, but never take yourself too seriously.
To be sure, some people these days like to magnify the work of the Court in dramatic ways. When many write or speak of the Court’s decisions, they tend to focus on disagreements. I guess conflict generates clicks and clicks generate money. But that can paint a misleading picture. Sure, we disagree sometimes on the hardest cases in our whole country. But professional disagreements are expected in our line of work, and they are not the same thing as personal ones. Besides, it’s not unusual for 40 percent of cases a term, or even more, to be decided unanimously. And that’s no small thing. It takes mutual respect and a lot of plain hard work to get nine people, appointed by five different presidents over a span of almost thirty years and from across the country, to agree on the outcome of hard cases. And even when we do disagree, it seems to me that should be not only expected but sometimes even celebrated. After all, the whole point of having nine justices is to bring different ideas to the table and ensure their careful and thorough testing.
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THAT ALSO BEARS ON the matters I would like to discuss with you today: civics and civility. Each serves a vital role in sustaining our republic, a nation established on the idea that the government exists to serve the people—not the other way around. In a time when despots ruled much of the world, our founders chose to believe that the people could govern themselves prudently, without destroying the civil liberties their ancestors had won, and without subjecting political minorities to arbitrary power. It was a revolutionary idea. So much so that when the Constitutional Convention proposed ordaining the Constitution in the name of “We the People,” Patrick Henry objected. Who was it, he asked, that “authorized them to speak the language of ‘We the People,’ instead of ‘We the States’?” Madison replied that “[t]he existing system has been derived from the…authority of the legislatures of the states; whereas, this is derived from the superior power of the people” themselves.
Many across the world thought this bold experiment in self-government was bound to fail, and the founders themselves recognized it would hardly prove self-perpetuating. They knew the cold truth that keeping a republic depends on certain very special conditions. And maybe highest on the list is that the people themselves know how their government works and are able and willing to participate in its administration. Monarchies and oligarchies have no need for widespread civic education. A ruling elite can learn the business of government from their predecessors easily enough. But in our republic the ruling class is supposed to be the whole of the American people. And for us to govern ourselves wisely, every generation has to learn the business of government and what values our republic was designed to serve and then commit themselves to participating in its operation. Even before the Constitution was created, the Northwest Ordinance declared that “[r]eligion, morality, and knowledge, being necessary to good government and the happiness of mankind, schools and the means of education shall forever be encouraged.” For us, civic education and engagement are not just ideals; they are indispensable. As Jefferson put it, “If a nation expects to be ignorant and free…it expects what never was and never will be.”
Some of this is pretty self-evident. You need to know about politicians, their views, and how they compare with others in order to elect representatives who will speak for you. You need to know, as well, about your rights in order to enforce them. You’re more likely to speak your mind freely if you know that the First Amendment protects freedom of speech. You’re more likely to protest the police rifling t
hrough your papers if you know the government cannot conduct unreasonable searches. You’re more likely to worship as you choose if you know your prayers are protected against government interference.
But if we are to be a self-governing people, we need to know not just our rights but the structures that protect them. Our government is one of limited and separated powers, a design deliberately chosen to secure the promise of self-rule and our liberties and to prevent the accumulation of power in too few hands. Yet, according to Annenberg, today it seems only about a quarter of Americans can name the three branches of government. Approximately a third cannot name any branch. Many do not know why the founders established this separation of powers or how it protects their liberties. Civic education is no longer a central part of the curriculum in many of our public schools.
Now, I’ll admit that sometimes ignorance is rational. For a boy growing up in Colorado it paid to know a lot about hiking and nothing about surfing. But I just don’t know how a government of and by the people can be sustained if we do not understand its basic structures, what powers we have granted the government and which ones we have reserved—and who does and doesn’t possess the constitutional authority to make new laws to govern us, to execute those laws, and to judge us under them. What happens to democratic accountability, civic responsibility, and so much more when we lose sight of those things and the reasons for them?
Consider an example. Say a statutory interpretation case yields a result you think stupid. How tempting is it to throw up your hands and blame the judge? But in our system of separated powers, the judge’s job is to enforce the laws as the legislature writes them. Of course, if the law offends the Constitution a judge may strike it down. But there’s nothing in the Constitution that forbids the people’s representatives from adopting stupid laws. In a government by the people, it is our responsibility as a people to ensure that our representatives enact wise laws. When we lose sight of that, we weaken the habit of self-government.
