by Neil Gorsuch
And about that, I have my doubts. Take the model of the judge as pragmatic social-welfare maximizer who seeks to weigh the various costs and benefits associated with the various possible outcomes of the case at hand and pick the one best calculated to maximize our collective social welfare. But in hard cases don’t both sides usually have a pretty persuasive story about how deciding in their favor would advance the social good? In criminal cases, for example, we often hear arguments from the government that its view would promote public security or finality. Meanwhile, from the defense we often hear that its view would promote personal liberty and procedural fairness. How is a judge supposed to weigh or rank these radically different social goods? They all may seem like pretty good things and the pragmatic model of judging offers us no value or rule for determining which costs and benefits are to be preferred. At the end of the day, these critics risk inviting us only to trade one sort of indeterminacy problem for another. And the indeterminacy problem invited by the critics may well be a good deal more problematic given the challenges of trying to square their new models of judging with our constitutional design and its underlying values. So it seems to me that before we throw overboard our traditional views about the separation of judicial and legislative roles, we might do well to remember The Bear.
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WITH THIS BRIEF SKETCH, I hope I’ve given you some sense of why I believe Justice Scalia’s vision of the “good and faithful judge” is a worthy one. But so far I’ve discussed mostly principle, not experience. And I run the risk of an objection from those who might suggest that there’s more in heaven and earth than is dreamt of in any philosophy. So as I close I want to make plain that the traditional view of law and judging not only makes the most sense to me as an intellectual matter but makes the most sense of my own lived and daily experiences in the trenches of the law. My life in the law has taught me that the law bears its own distinctive structure, language, coherence, and integrity. Lawyers seek to make judgments about the future based on a set of reasonably stable existing rules; they do so with a respect for and in light of the law as it is. That is not politics; that is the ancient and honorable practice of law. Now as a judge I see, too, that donning a black robe means something. It serves as a reminder of what’s expected of us when we go about our business: what Edmund Burke called the “cold neutrality of an impartial judge.” In my decade on the bench, I have served with judges who strive daily and long and hard to do as Socrates said we should—to hear courteously, answer wisely, consider soberly, and decide impartially. Men and women who do not thrust themselves into the limelight but who tend patiently to the great promise of our legal system—that all litigants will receive equal protection under the law and due process for their grievances. Judges who assiduously seek to avoid the temptation to secure results they prefer. And who do, in fact, regularly issue judgments with which they disagree as a matter of policy, all because they think that’s what the law fairly demands.
Justice Scalia’s defense of this traditional view of our profession is a legacy every person in this room has inherited. And it is one you students will be asked to carry on soon enough. I remember as if it were yesterday sitting in a law school audience like this one. Listening to a newly minted Justice Scalia offer his Oliver Wendell Holmes lecture. He offered that particular salvo in his defense of the traditional view of judging and the law almost thirty years ago now. It all comes so quickly. But it was and remains, I think, a most worthy way to spend a life.
May he rest in peace.
“POWER WITHOUT LAW”?
Where the last piece addressed the separation of powers between judges and legislators, this one, an amalgam of several talks I’ve given, raises questions about the other two sides of the separation of powers triangle: the executive-legislative and executive-judicial divides.
Imagine you’ve spent the past five years working on a new invention. You quit your job and even took out a second mortgage. After many ups and downs, you finally hit on something special. So now you endure the further cost and effort of applying for a patent to protect your idea, devoting tens of thousands of dollars and a few more years to that process alone. At the end of it all, the Patent and Trademark Office agrees your invention is novel. It issues a patent that affords you the exclusive right to make and sell your invention for two decades, a reward for devising something that stands to benefit everyone.
Or so you thought. Years down the road, someone emerges from the woodwork and argues that your patent should be revoked because your invention merely replicated an existing patent. Until recently, only independent judges and juries could strip patent owners of their vested property rights in duly issued patents. But lately things have changed. Now, anyone who wants to take your patent away can just file a petition with the director of the Patent and Trademark Office. And it turns out that the newly appointed director has different views from those that prevailed when your patent was issued. You see, the new director’s boss, the president, thinks other people should be able to make products similar to yours without having to pay you royalties; he and Congress these days are looking for “patent killers” to run the show. So the director sets out to ensure that your patent will be canceled. He starts by selecting the “administrative judges” who will hear the challenge to your patent, and he signals to them that invalidating the patent is a big priority for the new administration. It turns out, too, that these administrative judges can’t easily brush off the director’s pressure: They don’t have life tenure, the director supervises them, and he even gets to select which of them will participate in your case. In fact, if (somehow) his hand-selected panel doesn’t reach the outcome he prefers, he is free to add more administrative judges and order the case reheard. In the end, the outcome of your case comes as no surprise: The administrative judges unanimously vote to revoke your patent.
Sound like fiction—or maybe life in a regime where the rule of law isn’t as jealously guarded as it is here? In fact, this scenario is (loosely) based on allegations involving a real statute in a real case: the America Invents Act and Oil States v. Greene’s Energy Group. There, my Court upheld the act against a challenge alleging that it violated the separation of powers by allowing executive branch employees to exercise powers that previously belonged exclusively to the judiciary’s independent judges and juries. (Needless to say by now, I dissented.) And it illustrates the topic I’d like to discuss with you: the dangers that follow when we fail to police the separation of powers.
I’ve spoken before about the importance of the separation of powers between judges and legislators, how that separation protects our liberties, and the dangers that can arise when the lines between those powers dissolve into a muddle. But that aspect of the separation of powers is, in some sense, the easy one. In the legal profession, we have spent a lot of time and effort in recent years focusing on the difference between legislators and judges—and seeking to refine our theories of interpretation to honor that divide. The return of textualism and originalism to the forefront of legal interpretation debates may be attributed in large part, I think, to a renewed appreciation that they are the only theories that respect the judge’s proper role under the Constitution. But in all our debates over the boundaries between judges and legislators, I sometimes wonder if we have neglected attending with equal care to the boundaries between executive and judicial functions and between the executive and legislative roles.
Today, I would like to focus on those two sides of the separation of powers triangle. The framers firmly believed that the rule of law depends on keeping all three governmental powers in their proper spheres. They knew, too, that eliding these boundaries can prove powerfully tempting. Handing over judicial functions to the executive branch, for example, surely holds much allure, as my hypothetical illustrates: Agency employees may be more easily controlled than judges, their outcomes more easily assured, and their processes more efficient. Bu
t the founders also knew from hard experience with the Star Chamber and the Privy Council about the dangers of executive “courts.” They knew that when the executive is free to withdraw your legal rights, those rights are no longer protected by neutral legal principles, the judgment of independent judges, and a jury of your peers. Instead, they may be taken with the efficient dispatch of a political agent with political designs. Now, I am not suggesting that we face dangers today remotely on the scale of those the framers confronted. But I do wonder if sometimes we are insufficiently attentive to the costs that accompany departures from the Constitution’s design.
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LATER, I WILL RETURN to some questions about the separation of powers between the executive and judiciary that cases like Oil States invite. But I’d like to start our discussion with the executive-legislative divide. The Constitution, of course, vested all federal legislative powers in Congress. And it deliberately made the legislative process a hard one, demanding the participation and assent of a large number of representatives in two separate houses before a new law can be enacted. Meanwhile, the framers did much the opposite when it came to designing a branch to enforce the laws. They vested executive authority in a single president on the conviction that, if a law can survive the arduous legislative process, it deserves faithful and vigorous execution of the sort you cannot expect from committees.
Today, these lines often appear blurrier to us than they did to the framers. More and more, Congress “delegates” its legislative authority to executive branch agencies and tasks them with solving the pressing problems of the day. And what happens when the power to legislate is effectively transferred from a branch the framers designed for deliberation to one they designed for prompt action? In the first place, you get exactly what you’d expect: a lot more law. For some time now, agency-made law has far outpaced congressional output. Consider the (admittedly crude) data from 2016. According to Clyde Wayne Crews, federal departments, agencies, and commissions issued 3,853 rules, while Congress passed and the president signed “just” 214 bills. That works out to about 18 agency-made rules for every congressional statute. Nor was 2016 an anomaly. The decade before that saw about 27 rules for every law. The comparison holds, too, not just when it comes to the number of laws but the number of pages they cover. At the end of 2012, the number of pages in the Code of Federal Regulations exceeded the number of pages in the United States Code by a factor of nearly four—topping out at over 160,000 pages. Nor does the Code of Federal Regulations include the many thousands of pages of other “sub-regulatory” proclamations, memoranda, guidance documents, bulletins, circulars, announcements, and the like that federal agencies issue every year. All of which are often practically as binding as any statute.
Naturally, some of this output is vitally important. It addresses the regulation of financial institutions, our national defense, and workplace safety, among many other things. But some of this energetic executive output also includes rules that regulate the very fine details of private conduct and back it up with the threat of serious criminal penalties. Consider this example unearthed by A Crime a Day: chapter 21, section 155.194 of the Code of Federal Regulations, a provision titled simply “Catsup.” This regulation provides, among other things, that if you want to sell a food product called “ketchup” or “catsup,” you must first test the consistency of the product in a contraption called a Bostwick Consistometer to ensure that it flows at a rate of no more than 14 centimeters per 30 seconds at a temperature of 20 degrees Celsius, give or take a degree. If your ketchup doesn’t measure up, you may have to label it “Below Standard in Quality.” And if—heaven forbid—you sell ketchup that the federal government considers too runny without labeling it as such, you may have committed the federal crime of selling misbranded food, punishable by up to a year in prison for each violation. Madison warned that what we call “the rule of law” depends on the existence of laws that are reasonably clear, finite, and stable. Only then can people plan their lives and order their affairs. The rule of law comes under threat, he warned, when the laws become “so voluminous that they cannot be read, or so incoherent they cannot be understood.” And you might reasonably wonder where we stand on those metrics today.
When lawmaking moves from the legislative to the executive branch, it’s not just the amount of lawmaking that changes either. You may remember this story from your high school civics class. When Thomas Jefferson returned from France after the Constitution was written, he reportedly sat down for breakfast with George Washington. Jefferson criticized Washington for having agreed in his absence to a second chamber in the legislature, the Senate. Washington responded in this way: “Why,” he asked, “did you pour that coffee into your saucer?” “To cool it,” Jefferson answered. “Even so,” replied Washington, “we pour legislation into the senatorial saucer to cool it.”
As Washington saw it, the difficulties of the legislative process were essential to its design, purposefully placed there to ensure that laws would be more likely the product of deliberation than haste; more likely the product of compromise among the many than the will of the few; and more likely to respect minority interests than trample on their rights. As Hamilton explained, “The oftener the measure is brought under examination, the greater the diversity in the situations of those who are to examine it, the less must be the danger of those errors which flow from want of due deliberation, or of those missteps which proceed from the contagion of some common passion or interest.” Because no bill in our legislative process can become law without the assent of a majority of both houses of Congress and the president—three entities elected at different times, by different constituencies—passing a statute almost always means compromising, and in particular compromising with those who represent minority interests. Meaning that minority groups have a strong bargaining chip to protect their interests, achieve concessions, or outright topple a bill. The whole point of the design is to involve a wide spectrum of viewpoints and distill the best each has to offer through deliberation and negotiation. Meanwhile, of course, only one party at a time controls the executive branch. So if the executive is allowed to make law, it has far less need to take account of minority interests; less incentive to deliberate than act; and less need to compromise. One can, as well, expect the law to flip-flop pretty much whenever one party takes the presidency from the other. The result: Our executive-made laws are more likely to be winner-take-all, less likely to reflect the virtues of compromise and deliberation, less likely to respect minority voices, and more likely to be the product of haste and partisan passion.
Here’s still another question. What about the democratic accountability of those who make the laws? Under the Constitution, the answer is supposed to be pretty clear. Congress makes the laws and you are free to vote your representative in or out at regular intervals. But who do you blame for executive laws that you think ill-conceived, voluminous, or incoherent? Can you name the people who run the FCC, FTC, NLRB, or SEC? Even if you can, it’s not like elections are held for those who lead these agencies. To be sure, many agencies report to the president, who is, in turn, democratically accountable to the people. But presidential elections tend to be about the big-picture questions—war and peace, not individual regulations. Nor can presidents always control these agencies. As Professor Jonathan Turley reminds us, only about 1 percent of executive agency positions are filled by presidential appointees, and entire sectors of our national life are regulated by “independent agencies” insulated from presidential control. Churchill once said that the world is divided into people who own their governments and governments who own their people, and it is vital we never cross that line.
Now, you might reply, at least our elected representatives in Congress maintain some level of control here, for Congress can always impose new restrictions on agencies, undo their work, or even eliminate them. Maybe. But maybe, too, it’s sometimes rational for legislators to divest thems
elves of responsibility and hand off today’s hot potato to an agency. After all, legislators can then tell constituents that they have “solved” the “problem” by adopting legislation directing the agency to fix it—and at the same time they can blame the agency later if their constituents don’t like its chosen solution. Even more than that, maybe it’s sometimes rational for legislators who cannot enact their full policy program consistent with the Constitution’s demanding legislative process to pass what they can, delegate the rest to the agency to decide, and then try to cajole regulators to finish the job. So if we trust Congress to defend its legislative turf from the executive branch, we’re likely to be disappointed. And, besides, why should we leave the enforcement of the separation of powers to trust? The Constitution didn’t vest the legislative power in Congress to protect Congress. That assignment was just a means to an end, and the end is preserving the liberty of the people. When separated powers unite, it is their freedom that stands at risk.
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NOW LET’S RETURN TO the executive-judicial side of the separation of powers triangle where I started with our inventor and the Oil States hypothetical. The Constitution assigns the executive the job of implementing our laws and the judiciary the responsibility for interpreting them. For these tasks, the framers created diametrically different institutions. Unlike the politically accountable and energetic executive, the judiciary was designed to be insulated from political pressures so that people could be confident that their cases and controversies over the meaning of existing laws and past facts would be resolved neutrally.
