A Republic, If You Can Keep It

by Neil Gorsuch

  What is it that I want to exclude from the idea of the good appellate judge? It’s the idea that the appellate judge should or does decide cases based on his views of social policy. It seems this view of judging is everywhere these days. Television, movies, and popular culture all reinforce the view of the judge as some autocrat issuing idiosyncratic orders from his armchair. Yet, somewhat surprisingly, this view of judging is also sometimes given a degree of credence, though in a much more sophisticated form, by members of our own tribe.

  In particular, I have in mind here my Seventh Circuit colleague Richard Posner. Judge Posner is among the most accomplished federal appellate judges in our country. He is renowned for his intellectual prowess and efficiency—I hear he can simultaneously write an opinion with his right hand and a book with his left. But my sincere respect (and even envy) of Judge Posner notwithstanding, I must respectfully dissent from the thesis of his recent book, entitled How Judges Think, a title on which I have played a bit in the title of my remarks tonight.

  In his book, Judge Posner advocates what he calls judicial pragmatism. He tells us that, at least in hard cases where there isn’t yet a clear legal rule, judges can and should assess the potential consequences of available outcomes, and choose the one that they think, based on their personal assessment, will yield the best consequences for society. As he puts it, “American appellate courts are councils of wise elders…and it is not completely insane to entrust them with responsibility for resolving these disputes in a way that will produce the best results in the circumstances rather than resolving them purely on the basis of rules created by other organs of government or by their own previous decisions.”

  But how is this supposed to work? By the time cases reach us in an appellate court, both sides usually have a good story about how deciding in their favor would advance the social good—especially in the hard cases Judge Posner discusses. In criminal cases, for example, we often hear arguments from the government about how its view would promote the goods of public security and finality. Meanwhile, from the defense we often hear about how its view would promote the goods of personal liberty and procedural fairness. How is the judge supposed to weigh or rank these radically different goods? How is the judge supposed to say one is more important or socially preferable to another? The problem is, the pragmatic model of judging offers us no value or rule to compare or rank which costs and benefits are to be preferred and which aren’t. It’s sort of like asking judges to decide which is better: the taste of steak or the look of a mountain? Both are good and maybe I can tell you which I prefer, but my preference is only that, a preference—not something based on any principled analysis. In a very real way, then, the pragmatic enterprise is senseless, impossible; or, to borrow a phrase, it is rationally indeterminate. It may help us identify the costs and benefits, but it doesn’t offer any guide on which to choose.

  This, in turn, brings into view a separate and maybe bigger problem with the pragmatic approach to judging. In a representative democracy, deciding which competing social good to choose and which to forgo generally isn’t supposed to be left to judges. We are a nation governed by the consent of the people. It is usually they, through the Constitution they adopted or through the representatives they elect, who are supposed to choose between and prioritize the many competing goods that are worthy of our attention—deciding, say, how much of our collective social resources should be devoted this year to promoting education of the young versus caring for the elderly. Or how much to devote this year to guns versus butter. Or to take two more mundane but real examples of the sorts of things our Congress debates—whether to fund this year either barnyard fly control in Colorado or a sheep museum in Wyoming.

  The point is that we are a nation under laws as adopted by the people, not a nation ruled by unelected elders. Federal legislation must survive the arduous procedures prescribed by the Constitution. Procedures that force compromise and thus ensure that at least some social consensus has been hammered out before a new law may bind the nation. How can it be “pragmatic” to say that a few unelected judges are entitled to do the job constitutionally assigned elsewhere? For that matter, are we really sure that we would do a better job? We lawyers and judges are trained in logical reasoning, not the social sciences, economics, business, sociology, or management. Even if pragmatism were permissible, as a matter of institutional competence would it be sensible to assign judges the job?

  What’s more, if hard and ambiguous cases liberate judges to act as councils of elders who tote up consequences and proceed to the result they consider socially optimal, no doubt judges will find a great many cases to be hard and ambiguous. Why would a judge want to spend hours parsing convoluted statutory and contractual language, or reviewing a voluminous administrative record, when he could just announce his own preferred rule? Sometimes I’d rather suffer an appendectomy than scour through a joint appendix. Legal clarity thus becomes the chain that binds the brilliant judge from fixing society. The clever judge has every incentive to wrest himself from that chain—to find the liberating ambiguities necessary to become a benevolent social engineer.

  Of course, there are some truly hard cases, plenty of them. And judging is more of an art than some mechanical science always yielding a single obviously right answer. So, one might ask, what are judges supposed to do when faced with, say, a cryptic congressional statute whose meaning is genuinely ambiguous? Federalist No. 78 long ago put its finger on the essential attribute of the good appellate judge when it called on members of the judicial branch to bear in mind the distinction between what it called the exercise of political will and the exercise of legal judgment, noting that judges in our constitutional system do well to avoid “the substitution of their pleasure to that of the legislative body.” It is, in other words, the judge’s job to employ not his own will but the traditional tools of legal analysis—the various canons of statutory construction, rules of grammar, analogies to precedent, and the like—in an effort to discern the meaning of Congress’s commands. Of course, judges sometimes disagree about which tools of legal analysis are most helpful in the art of ascertaining Congress’s meaning in hard cases. They also sometimes disagree over the order of priority we should assign to these competing tools. And they sometimes even disagree over the results these tools yield in particular cases. But debates like these reflect a genuine concern with how we can best reach or approximate Congress’s will, not our own.

  Many other features of our legal system do much to encourage this view of the good judge. One of them is the adversarial process. When I was his law clerk many years ago, Judge David Sentelle of the D.C. Circuit liked to remind me, in his North Carolina drawl, that “in this country, Neeeilll, we have a little thing called party control of litigation.” It seems to me that the good judge recognizes that, in our adversarial process, many of the lawyers in the cases before us have lived with and thought deeply about the legal issues for months or years before the judge ever comes on the scene. Unlike continental Europe, where the judge often charts the course of litigation in an inquisitorial search for the truth, our common law system generally affords litigants the opportunity and duty to choose which arguments to advance and how to develop the record. We usually depend on the parties rather than a judicial bureaucracy to identify, limit, and sharpen the issues for our decision. The judges I have come to know generally have a healthy dose of skepticism about their capacities to arrive at the optimal legal answer in complex cases purely by self-direction. Instead, they rely heavily on members of the bar as partners in the process of identifying the issues and arguments for decision.

  Another constraint on the judicial function lies in the collegial process of deciding appeals. We do not sit alone, but work in panels—or, as a veteran appellate attorney might put it, in packs. This process rewards efforts to reach consensus. To be sure, consensus isn’t always possible, or even necessarily desirable. After all, who would have wanted Justice
Harlan to forgo his dissent in Plessy calling on the Court to recognize the true meaning of the constitutional promise of equal protection of the laws due all persons? One of the most important aspects of the judge’s role is to bear faith to the meaning of the Constitution or a statute in the face of criticism and majoritarian opposition. Ours is often a counter-majoritarian function, aimed at protecting the constitutional rights of every person, even (and perhaps especially) in the face of strong opposition.

  At the same time, the process of at least trying to obtain consensus within the court often serves to illuminate the more subtle issues, sharpen the analysis, and help guard against individual biases, temptations, and willful preferences. It also means that a nuance one colleague may miss might be captured and corrected by another. The model here for me is again my first boss out of law school, David Sentelle. During the time I clerked for him, he first issued a panel opinion going one way but, later, changed his mind and wrote an en banc opinion (for the full court) reversing his own panel opinion. I admired the humility he showed, and the careful consideration he gave to his colleagues’ views. In this respect, the Tenth Circuit may be particularly blessed. Even when we do not agree, our interactions and opinions are usually collegial and we do not hesitate to change our minds when a colleague sees something we may have missed. I think that serves the people of this part of the country well, and it is surely the envy of many of our appellate court colleagues elsewhere.

  The role of precedent in our legal system also serves to constrain the good judge. While other legal systems afford little or no deference to precedent, in our system judges generally respect and follow precedents written by those who preceded us in the profession. We rightly treat these precedents as a form of intellectual inheritance, as learning handed down from those who have faced similar problems in the past, and we are obliged to give them the respect one well owes those who have come before, seen it, been there, and done that. And we remember that people often enough order their affairs around these precedents and these reliance interests count too.

  There are also our standards of review. Though cynics question whether they have any meaning, they have real and important meaning to the good appellate judge. Take “abuse of discretion” review. That standard, music to the ears of many a district judge, implies a recognition that the district court frequently faces situations in which there will be a range of possible outcomes that the facts and law can fairly support. Rather than pick and choose among them ourselves, we defer to the district court’s choice so long as it falls within the realm of those rationally available under the facts and law. So, for example, in sentencing we recognize that the district court is required to balance a host of disparate considerations, ranging from the degree of the defendant’s cooperation and remorse to the need for deterring potential future offenders. And we recognize that the district court is in a far superior position to engage in this act of discretion, having had a chance to see and hear from the defendant, try the case, and listen to victims. At the same time, a district court’s discretion is neither boundless nor bounded by appellate judges’ personal preferences. We act as a backstop by, among other things, scrutinizing purely legal questions anew and by double-checking to make sure the factual findings of the district court enjoy some basis in the record. As appellate judges, then, we do not simply displace the jury’s or the district court’s judgment with our own. We serve a more modest backstop function that very often requires us to uphold decisions we would not ourselves make.

  Ultimately, I can offer tonight only a few examples of the sorts of institutional constraints and personal characteristics of the good judge that help distinguish legal judgment from willful policymaking. But there’s one more feature I would like to comment on, given the individual we are here to honor tonight—a feature on which I think Judge Posner and I would agree.

  It has to do with personal integrity. In my three years on the bench, I have served with judges who strive to leave aside their personal biases, who do not aspire to shake the earth as willful Legal Titans. I’ve witnessed men and women quietly working hard to be fair arbiters of the disputes placed before them, knowing they, like most of their cases, will be forgotten in the sweep of time. Judges who struggle to decide cases dispassionately, assiduously seeking to avoid the temptation to secure results they prefer. Judges who pause to ask whether the results they are reaching are self-indulgent or ones justified by the law and facts of the case. Ones who act independently, without fear of disfavor or desire for public plaudits. Men and women who do not thrust themselves into the limelight but who are patiently tending to the great promise of our legal system—that all litigants, whether popular or reviled, will receive equal protection under law and due process for their grievances. These are judges who realize that every case, no matter how small, matters monumentally to the people involved. And all this, I think, is what makes our jobs most meaningful. It is the timeless virtue of a life well lived in the service of others that matters.

  I emphasize this particular trait of the good judge tonight because there can be few better models of it than the man we are here to honor. In the midst of the Great Depression, as Judge Holloway’s father was wrapping up his term as governor of Oklahoma, some of you may know that he sat down and wrote a note to his son. It was January 12, 1931, the last day the governor was to serve in office. In his letter, the governor related that it was “the last instrument or message” he would sign while he was governor, and he went on to say to his son that “my prayer and greatest ambition is that you may have good health and live to become a useful and upright citizen. To the accomplishment of this high purpose for you I shall devote my life. I am as proud of you as it is possible for a father to be of a son.”

  I think it is safe to say that Judge Holloway has not just met, but amply exceeded, his father’s aspirations for him. And how many better things than that can be said about any man’s life?

  OF INTENTIONS AND CONSEQUENCES

  Many years ago, I was lucky enough to receive a scholarship to pursue a doctorate at Oxford. It was a time when legal giants roamed that city. John Finnis, Joseph Raz, and Ronald Dworkin were all there, busy with their seminal works, their lectures and seminars open to any curious graduate student. As a student at the same college where Professor Finnis has spent almost a half century, I was fortunate to have him as my dissertation supervisor.

  Many years later, on Professor Finnis’s retirement from Oxford, I was asked to speak at a symposium at Notre Dame and contribute to a book in his honor. My assignment: discuss and develop one aspect of his many contributions to legal scholarship. What follows is an excerpt from my speech. In some sense it might seem a tribute to a professor—and it is certainly that. But I hope it also offers a glimpse into some of the reasons why I think our Anglo-American legal tradition and the role it gives the judge form such a special inheritance. It is a tradition, after all, that rests on fundamental convictions about treating individual persons as ends, not means; the importance of free will and individual liberty, not just social consequences and overall utility; and the equality of all human beings.

  Others have, and will for years to come, write and speak about, learn from and debate, John Finnis’s contributions to ethics, philosophy, even Shakespearean scholarship and theology. But as a workaday judge, my daily bread does not consist of such high cuisine. It is instead made up of a comparatively pedestrian—if wholesome and filling—stew of statutes and precedents, regulations and rules. Yet, from time to time, Professor Finnis has been kind enough to dine with those of us who subsist on such doctrinal fare—and here, too, he has applied his remarkable talents in important and enduring ways.

  In crime and tort, legal liability has often and long depended on a showing that the defendant intended to do a legal wrong. When it comes to inchoate offenses (incomplete offenses, like attempt and conspiracy), the presence of an unlawful intent is frequently what separates criminalit
y itself from legally innocuous behavior. The same holds true when it comes to accessory liability. The law of homicide, as well, “often distinguishes either in setting the ‘degree’ of the crime or in imposing punishment” between intended and unintended killings. And many of our most serious torts (say, battery and assault) are denominated intentional torts. Of course, what qualifies as “intentional” and thus sufficient to render the defendant liable in the civil context is broader than in the criminal context—embracing knowing as well as truly purposeful wrongs in American law. And perhaps this is so for good reason, given that in tort only money, not freedom, is on the line. But in the civil context it remains a fact that the nature of liability (punitive damages, for example) is generally more expansive and serious for what tort law deems an intentional wrong than for wrongs involving only lesser mens rea.

  In comparatively recent years, some have argued for tearing down this traditional legal edifice. These theorists have suggested that the presence or absence of an intent to perform a legal wrong should be “neither here nor there” when it comes to assigning legal liability; that the common law’s traditional reference to intention should be scrapped or revised; that a better way forward exists. Let me outline just two of the challenges to our received tradition and then highlight some of the defects associated with those efforts, defects that Finnis’s scholarship has helped illuminate.