Supreme Court Justice Neil Gorsuch may be the most optimistic lawyer in America today — which is surprising because he just published a book looking at where America’s experiment in constitutional governance is struggling.
He rejects the notion of treating judges as political figures, siding with Chief Justice John G. Roberts Jr. in dismissing President Trump’s suggestion there are “Trump judges” and “Obama judges” whose decisions are predictable based on who appointed them.
But that doesn’t mean all is well in the legal world, where he does acknowledge a gap between what judges are supposed to be doing — deciding cases based on the laws written by Congress — and the expectations of many Americans, who want judges to shape outcomes.
“If you don’t like the law, you go across the street. You change it. It’s not my job to do their job,” he told The Washington Times from his Supreme Court chambers, on the other side of First Street from the U.S. Capitol. “We need to understand the separation of powers … To me it’s what keeps us free.”
That sentiment pervades his book “A Republic, If You Can Keep It,” which is being released Tuesday. The title is taken from a famous line Benjamin Franklin is said to have told an enthusiastic questioner about the outcome of the Constitutional Convention in Philadelphia in 1787.
Count him among those still convinced the founders got it right, though he is concerned that Americans don’t fully appreciate the genius of the system they set up. Sometimes, he argues in his book, neither do towering legal minds.
He takes on those who say the courts should shape social outcomes the way they see fit — a philosophy sometimes propounded by, among others, retired Judge Richard Posner, who likes to rule without regard to “doctrine, precedent and all that stuff.”
And Justice Gorsuch fiercely defends the legislative gridlock that irks so many others who look at Washington and wonder why things aren’t getting done.
“Lawmaking’s supposed to be hard, because it’s restricting your liberty, right?” he said in his interview with The Times. “It’s supposed to be a public process by your elected representatives, by representatives elected by different constituencies at different times, by two bodies. You’ve got to go to different bodies.
“You’ve got to get the president on board or override his veto. Modern social science has proven this essentially creates a supermajority requirement, by itself. And it gives minorities a very special power in the process because their votes, which might otherwise not count much in a pure democracy, now because of this convoluted and difficult system, they have a voice,” he said. “Madison knew this. This is the genius of the design.”
Justice Gorsuch’s book is a compilation of works — speeches he’s delivered, such as a memorial to the late Justice Antonin Scalia, whose seat he filled on the high court; essays he’d written for symposiums; and original pieces summarizing his approach.
He also includes some of his opinions as a judge, where he’s grappled with big constitutional issues.
One of his major themes is a defense of judging, arguing that those who view judges as political actors working to shape outcomes not only misread their role — but are wrong about the realities.
He goes through the math, pointing to some 360,000 cases filed each year in federal courts. Of those, 5.6% actually get appealed to a circuit court, and 95% of those will be resolved unanimously. The Supreme Court will end up hearing about 70 cases a year — in theory the toughest of the toughies — and 40% of the time the justices will still issue a unanimous ruling.
He said that ratio has been steady for decades, suggesting the courts are still operating as they should.
“Get nine people to agree with where to go to lunch,” he said. “We managed to reach unanimity in those hardest cases about 40 percent of the time.”
Chief Justice Roberts last year issued a rebuke of Mr. Trump amid the president’s criticism of some of the rulings against him — often by judges appointed by Presidents Barack Obama.
“We do not have Obama judges or Trump judges, Bush judges or Clinton judges,” the chief justice said in his extraordinary statement. “What we have is an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them.”
Yet the numbers suggest there is something to Mr. Trump’s complaint.
A Washington Times analysis of Obamacare decisions earlier this decade found a clear division between rulings from judges nominated by Democratic presidents and those from GOP-appointed judges.
Likewise a Times analysis over the last two years found near unanimity among Democratic-appointed judges in ruling against Mr. Trump’s immigration actions. GOP-appointed judges were far more mixed in their rulings.
Justice Gorsuch dismissed the notion outcomes could be predicted with some success based on the party of the president who nominated a judge, saying he himself changes his mind on cases at every step of the way, from reading briefs to hearing oral arguments to talking with his colleagues to sitting down to write.
“That’s the idea,” he said. “Are we fallible? Of course we’re fallible. We’re not perfect. We all have a professional identity that we aspire to. This is what the good judge aspires to. That’s what I see on a day in and a day out basis this court and courts across this country.
“Mostly these are anonymous judges. These are people that gave up lucrative private practices because they believe in the Constitution, they love this country, they believe it’s a beacon for hope, they believe the Constitution is the greatest charter of human liberty ever devised, and they’d rather spend their life in defense of that than in chasing another dollar,” he said.
He is a strong proponent of the originalist approach to judging, which means looking to what those who wrote the laws meant at the time they passed them.
“An originalist isn’t horse-and-buggy days. He’s taking an idea from the Founding and extrapolating to current conditions. The meaning doesn’t change, the applications might,” the justice said.
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