by Neil Gorsuch
Let me mention two models of lawyerly courage that might inspire you when times like these come. In March 1770, a grand jury indicted a British captain, Thomas Preston, and his men for the death of several colonists in what came to be called the Boston Massacre. If the soldiers were found guilty, they could face the death penalty. Yet the redcoats were so unpopular in the local community that they had a hard time finding a lawyer to represent them. It wasn’t until they approached John Adams and Josiah Quincy that they found someone willing to lead their defense.
Adams, of course, went on to become president of the United States. But when he took on the case as a local lawyer, he was worried that it could harm his reputation, his political future, his financial well-being, and even the safety of his family. None of that stopped him. And in the end, he persuaded the jury to acquit most of the soldiers. Years later, he recalled: “The Part I took in Defence of Cptn. Preston and the Soldiers, procured me Anxiety, and Obloquy enough. It was, however, one of the most…disinterested Actions of my whole Life, and one of the best Pieces of Service I ever rendered my Country. Judgment of Death against those Soldiers would have been [a] foul…Stain upon this Country.”
Quincy even had to fend off pressure from his father. The father criticized his son for “advocat[ing] for those criminals who are charged with the murder of their fellow-citizens.” Yet Quincy didn’t hesitate to reply: “[C]riminals…are entitled by the laws of God and man, to all legal counsel and aid; that my duty as a man obliged me to undertake; that my duty as a lawyer strengthened the obligation….I never harboured the expectation, nor any great desire, that all men should speak well of me. To inquire my duty, and to do it, is my aim.”
Of course, lawyerly courage hardly guarantees that you will prevail in courts of law, let alone in courts of public opinion. Take this example Neal Katyal has reminded us of from the Korematsu case where the Supreme Court wrongly upheld the mass internment of American citizens of Japanese descent during World War II. During the proceedings, senior Department of Justice officials prepared a brief representing to the Supreme Court that Japanese Americans were engaging in espionage on a large scale and posed a national security threat. But two relatively young Justice Department lawyers, Edward Ennis and John Burling, were aware of evidence from the Office of Naval Intelligence and the FBI undermining this claim and sought to have the government’s brief amended. The pair appealed to an assistant attorney general for aid, writing that “it was highly unfair to this racial minority that these lies, put out in an official publication, go uncorrected….The Attorney General should not be deprived of the present, and perhaps only, chance to set the record straight.” In the end, the record was not set straight for many years, until well after Ennis and Burling died. In fact, it took until 2011 when Katyal, then serving as acting solicitor general, took the admirable step of acknowledging the government’s failure to be fully forthcoming to the Court. The Court itself finally and formally disavowed Korematsu only in 2018.
Of course, Ennis and Burling were no less courageous because they failed—indeed, that is the essence of courage. To know that you face a choice that may harm you in concrete and meaningful ways. To know that you may gain nothing but scorn in return for your risk, and that your decision may never be vindicated. And then, knowing all this, to step forward anyway.
* * *
—
HOW DO YOU CULTIVATE lawyerly courage? It starts right here, right now, in your first days in law school. “[Y]ou need to decide now,” at the beginning, “what kind of lawyer you want to be,” what kind of life story you want to be able to tell at the end of it all. After all, it’s only by seeing the target that you have much chance of hitting it. Then, once you have your eyes on the destination, you must begin to behave in ways designed to take you there and see it through, no matter what. As my friend Judge Patrick Schiltz would say, you must live your ideals “[a]lways. Everywhere. In big things and small.”
Make a daily habit of courage in small matters, and that habit will enable you to persevere when the big ones arrive. From your first day of law school, you must choose whether to volunteer your thoughts and insights in the classroom. You may be afraid of public speaking, or simply worry that you will look foolish. Remember what Patton said: Courage is just fear hanging on one minute longer. So hang on just a little longer and speak up. Next year, you will choose whether to take difficult classes or easy ones. Take the risk. Throughout your time in law school, remember, too, that while you will have many regrets in life—things done or said, things left undone or unsaid—you will never regret being kind to those around you. The easy path is to shun those with whom you disagree. Show the courage of kindness.
What does this daily habit require of you once you leave these halls and enter practice as a young lawyer? It might be to choose taking up a public-interest cause, to enter public service, or to take some other risk. It will always require you to avoid blindly taking the path of least resistance. To be civil and decent to opposing counsel when your client or boss wants you to act rudely or wrongly. To refuse to pad your time sheet, even when it’s late at night, you’re facing an hours shortage, and no one’s looking. To tell a boss that you won’t make an argument because it’s untenable and unethical. To acknowledge your own mistakes rather than lay blame on a secretary, a paralegal, a colleague. Now, none of us is perfect. All of us falter and fail to live up to our own ideals. But when that happens, you cannot give up or give in. You must look at yourself squarely in the mirror, warts and all; make a full assessment; and then pick yourself up and begin again.
Some of the challenges you face will come only once you’ve become a more senior attorney. You may have to tell clients that they have no case or that hiring you to perform a task simply isn’t worth the cost to them even though it would feather your nest. You may have to refuse to allow a client to testify falsely—even if no one would ever find out. You may have to tell clients to turn over responsive documents even when they would very much like to hide them and you can even tell yourself some not-implausible-but-not-wholly-persuasive story for giving in. Like John Adams, you may need to take on an unpopular representation. The challenges will only grow, but I hope your response will be the same. Hopefully by then, courage will be a well-practiced habit that comes naturally, if sometimes with real and heavy costs.
* * *
—
STILL DIFFERENT CHALLENGES COME your way when you become a judge. Joining the bench may seem a distant and remote possibility today. But I can tell you that day will be upon some of you sooner than you imagine.
Alexander Hamilton recognized the need for—but the difficulty of—encouraging judicial courage when defending the new Constitution in The Federalist Papers. He explained that the job of the judge is to enforce the supreme and enduring law of the Constitution over the current will of the majority even as embodied in duly enacted legislation. To encourage the sort of courage necessary to that unpopular and difficult task, Hamilton noted that the Constitution promised life tenure to judges. Yet even then, Hamilton acknowledged it would still “require an uncommon portion of fortitude in the judges to do their duty as faithful guardians of the Constitution,” especially “where legislative invasions of it had been instigated by the major voice of the community.” No one, after all, much relishes ridicule, castigation, or derision, even with life tenure.
Our history offers examples of both judges who displayed the kind of uncommon fortitude Hamilton hoped for, as well as those who did not. Consider the second of the famous Chenery cases, which concerned FDR’s wildly popular New Deal. In the 1940s, the newly created Securities and Exchange Commission issued an order stripping a company’s employees of stock they had acquired consistent with the laws at the time. Yet the SEC decided to make the acquisition unlawful retroactively, without any prior notice to the affected parties, penalizing them for past and entirely lawful conduct that they couldn’t now change.
A majority of the Court acquiesced, justifying the agency’s retroactive lawmaking. But Justice Robert Jackson cried foul. Though he had served as FDR’s attorney general only years before, though he was himself an architect of the administrative state, he could not see how any government official should be allowed to rewrite the law after the fact. He wrote that the Court’s decision approved a naked exercise of “administrative authoritarianism, th[e] power to decide without law.” This, he warned, threatened to weaken the very rule of law itself, for the “decision is an ominous one to those who believe that men should be governed by laws that they may ascertain and abide by, and which will guide the action of those in authority as well as of those who are subject to authority.” Jackson had to know that his opinion would alienate his friends at 1600 Pennsylvania Avenue and win little popular support. But as he explained, “something does happen to a man when he puts on a judicial robe, and I think it ought to. The change is very great and requires psychological change within a man to get into an attitude of deciding other people’s controversies, instead of waging them.”
This brave, if lonely, dissent is at least recorded on the pages of the United States Reports. But many equal or greater acts of courage occur daily and often with little fanfare in the lower courts throughout our country. Consider what happened to J. Waties Waring. As John Cannon Few has reminded us, Judge Waring stood firm against popular pressures in early civil rights cases that deeply challenged segregated society in his home state of South Carolina. Because of his decisions, his friends and community shunned him and his home was damaged. Thousands of his fellow South Carolinians signed an impeachment petition against him. At one point, when lightning hit Judge Waring’s neighbor’s house, the neighbor responded with a sign that said: “Dear God, Judge Waring Lives Next Door.” A mob even burned a cross in Waring’s front yard. Years later, in a speech honoring Waring, a member of the bar observed that “[i]t takes real courage for a judge, in opposition to the deep-seated folkways of those with whom he lives…to say, ‘This is the law. It is my duty to enforce the law and I will do my duty.’ ”
Acting in the face of pressure to abstain, though, is only one aspect of judicial courage. There’s another and parallel aspect that flies more under the radar, is perhaps harder to accomplish, and may be even more praiseworthy. This form of courage is self-restraint in the exercise of power. It seems to me that the courageous judge recognizes that the Constitution doesn’t afford him life tenure so he can invent new laws for which today’s passing majority may be clamoring. Instead, he recognizes that his tenure exists for a more timeless purpose, to uphold and defend the Constitution as adopted—and to go no further.
To be sure, we’ve reached an odd point in our constitutional culture today that this latter form of courage is something we need even mention. But today it sometimes seems that many people in our society think that whatever is bad must be unconstitutional—and whatever is good the Constitution must compel. Some seem to assess judges based not on their technical competence, judicial demeanor, or logical consistency, but simply based on whether they’re willing to find this or that popular idea in the Constitution. They do not want judges to decide cases impartially; they seem to want judges who are willing to pick and choose winners and losers based on their favorite policy results. They seek judges who care not about fair process, but who are instead all about ensuring certain favored policy outcomes.
It takes more than a little courage to stand up against this trend. Judge Robert Bork aptly put the point in this way:
In law, the moment of temptation is the moment of choice, when a judge realizes that in the case before him his strongly held view of justice, his political and moral imperative, is not embodied in a statute or in any provision of the Constitution. He must then choose between his version of justice and abiding by the American form of government. Yet the desire to do justice, whose nature seems to him obvious, is compelling, while the concept of constitutional process is abstract, rather arid, and the abstinence it counsels unsatisfying. To give in to temptation, this one time, solves an urgent human problem, and a faint crack appears in the American foundation. A judge has begun to rule where a legislator should.
What happens when these cracks appear? Consider Dred Scott v. Sandford—one of the darkest hours in the Supreme Court’s history. There, the Court went out of its way to bend the Constitution’s terms in an effort to try to quell unrest in the country over the question of slavery. The Court invented the legal doctrine of “substantive” due process and then proceeded to use it to hold that Congress had no power to regulate slavery in the Territories. This innovation, the Court thought, would solve a current social crisis. Of course, it did not. Only Justices Benjamin Robbins Curtis and John McLean dissented to explain that the Court’s course had no basis in the constitutional text.
A more recent and hopeful example of this kind of judicial courage can be found in Washington v. Glucksberg. In that case, the Court was confronted with the question whether the Constitution contained a right to assisted suicide. You might think that assisted suicide is a very good idea as a matter of policy and morality. Or maybe you think that assisted suicide is a very bad idea as a matter of policy and morality. But whatever your personal opinion on these hard questions of policy and morality, the Court recognized that the question is easy as a matter of law: There’s absolutely nothing in the Constitution to suggest that it dictates a right to assisted suicide or prevents a self-governing people from regulating the practice. Just as there was nothing in the Constitution that prohibited Congress from regulating slavery in the Territories in Dred Scott. Yet here, unlike there, the Court showed the courage of restraint and did not arrogate to itself a decision that the Constitution allowed a self-governing people to make.
* * *
—
WHETHER YOU SERVE ULTIMATELY AS a lawyer or judge, I hope as an officer of the court all the same you will help explain these virtues to your clients, your family, and your friends. In popular culture, we often see people deriding judges who issue unpopular rulings or lawyers who represent unpopular clients. We see those who confuse a judge’s ruling or a lawyer’s representation with support for the person’s cause or personal favoritism or bias. They suggest that when a judge rules for a corporation, he loves corporations. Or that when a lawyer represents a criminal defendant, he loves criminals.
Attacks like these miss the mark. They misunderstand completely the roles of the judge and lawyer. I hope you will help remind those you encounter that if they want to secure their own liberty from oppression, they should want lawyers and judges who are unafraid to follow the law where it leads and enforce the law fearlessly, without bending to the passing whims and wishes of public opinion. For one day, too, you might remind your friends, they could find themselves braced against the prevailing winds of the day, in need of a lawyer and facing a judge. And when that day comes, I hope you will ask them, would they rather stand before a court of public opinion or a court of law?
(HOW) DO JUDGES THINK?
Early in my tenure as a Tenth Circuit judge, I was asked to participate in a lecture series before Oklahoma City lawyers and judges named in honor of Judge William Holloway. By that point, Bill Holloway had been a member of the Tenth Circuit for almost as long as I had been alive. His life and career were a model for all of us who had the privilege of serving with him, even if his deep and honest humility wouldn’t ever allow him to admit it. I sought to honor his example that night by speaking about some of the judicial virtues I had watched him exemplify and some of the vices he took care to avoid.
It is a pleasure to be part of a lecture series named in honor of my colleague Bill Holloway. Judge Holloway is universally admired by the members of the Tenth Circuit, as I know he is by members of the bar in Oklahoma. To be a part of a lecture series that is an ongoing, living tribute to Bill and Helen Holloway is a humbling privilege.
The organizers of tonigh
t’s event asked if I would share some reflections on what it’s like to be a still-somewhat-new federal appellate judge. Though now three years into the job, I confess the memory of my first day on the bench won’t soon fade. I donned the robe, shook hands with my colleagues, and headed into the courtroom. But as I ascended the steps to the bench, I stepped on the bottom of my robe, tripped, and just about sent my papers flying. I spent the remainder of the day’s arguments red in embarrassment. When I finally made it back to chambers, my wife called to ask how my day went. After I sheepishly recounted my misadventure, she advised me, “Neil, you have to lift your hem as you climb stairs.” So it was that my first lesson in judging was really a lesson in fashion. And so it is that tonight I will offer a peek inside the robing room and hazard a few early—and so necessarily tentative—reflections on how an appellate judge thinks.
In approaching this topic—how appellate judges think—I recognize it is a delicate one. One fraught with disagreement. One on which some harbor grave reservations. After all, many of our brothers and sisters on the district court doubt whether appellate judges think at all. Or whether appellate judges can only do so in groups of three or more. Or whether the deferential standards of review we appellate judges owe to district courts really mean appellate judges are best off not even trying to think. And there is something admittedly peculiar about the role of the appellate judge. As the saying goes, it is the duty of the district court judge to be quick in ruling and courteous to the litigants. But does that mean judges of the court of appeals always have to be slow and crapulous? I hope not, even if I suspect some of the district judges in the room may harbor a different opinion on that one.
In approaching the peculiar role of the intermediate federal appellate judge, let me begin in the same way, suggesting first what the judge hopefully is not before focusing on what the judge might aspire to be. Now, I realize this is a roundabout way to proceed. Still, I follow this route not only because it is easier, but also because I can’t help it. After all, even now I remain a member of the only profession known to mankind that could call a ten-thousand-word document a “brief.”
