Carson Holloway attempts to offer a mix of original public meaning and original intent, which offers an imperfect foundation for originalism.
When Richard Reinsch asked me to review Justice Neil M. Gorsuch’s recent book, A Republic, If You Can Keep It, I entertained some doubts: I suspected that I might like it, but know full well that I have never written and probably cannot write in a gentle key. To borrow one of William F. Buckley’s lines: Sarcasm—snark—isn’t my preferred mode of discourse, it’s my only mode of discourse, one wholly unsuited to this occasion. But let’s see if we can make this work.
With the generously acknowledged assistance of two law clerks, Justice Gorsuch has collected some of his speeches, excerpts from law review articles, and extracts from some of his written opinions, all edited for length and stripped of footnotes and other distractions. The Justice complements and rounds out the collection with anecdotes and reflections on his family background; his beloved West; colleagues, friends, mentors, and role models; and life-shaping moments, including his nomination and appointment to the U.S. Supreme Court.
An overused aphorism for a title; snippets and war stories: that cannot work, you’d think. But it does work, splendidly. Justice Gorsuch makes good on his choice of the title (see below). The essay and opinion excerpts hold together and often convey insights in a way that is not easily replicable in a more conventional format. And the author has a point to make (several excellent points, in fact). This isn’t a vanity project; it’s a serious work of civic education.
“My hope,” Justice Gorsuch writes, “is to contribute to a revival of interest in the Constitution of the framers’ design and the judge’s role in it.” That project, the author makes clear, is intimately connected to the hope of helping to restore civility: mutual respect and simple good manners in our private lives and in our public life. I’m guessing that the civility concern is more urgent to Justice Gorsuch than are the civics. (It is to me. If a better understanding of, say, Madison’s Convention Notes were mobilized mostly by brutes, demagogues, and shills; or if we put textualism in the hands of those characters, we might be worse off.) You can’t run a decent, free society without civility and good manners, Justice Gorsuch insists; and no society is more in need of those things than a democratic, egalitarian society. The book title makes this Tocquevillean point: Justice Gorsuch not only explains it well, he also emphasizes its lineage. Good of him to see it, and better yet to drive it home.
Although the Justice never quite says so directly, the civics-and-civility nexus bears with special force on the contemporary screaming over the law and the courts. Incessant agitation over “Obama judges” and “Trump judges” and “politicians in robes”; brutal personal attacks on individual judges and justices: the demagogy is corrosive of both civics and civility. Justice Gorsuch resists it with all his heart, soul, and mind. So motivated, he delivers potent arguments against the demagogues across the political spectrum.
The empirics, he observes, are overwhelmingly against the view that law is all politics. Only a vanishingly small number of disputes end up in (federal) court. A far smaller number end up in appellate courts. 95 percent of those hard cases are decided unanimously by three-judge panels. The Supreme Court selects cases of disagreement among circuits; and even those exercises of judicial review mostly produce near-unanimous rulings and, occasionally, funky judicial coalitions. “The amount of indeterminacy in the law is often exaggerated,” Justice Gorsuch notes. It’s an awful error to mistake the miniscule set of “partisan” Supreme Court cases for the legal universe, or even the judicial universe.
That hugely important point is rarely acknowledged. Ronald Dworkin constructed law’s entire “Empire” from the vantage of “hard cases,” the better to have “Herculean” judges run the planet into ruin. (Justice Gorsuch credibly avers that he has never met a judicial Hercules. “There is a reason,” he writes in a characteristically funny aside, “why we wear loose-fitting robes.”) “Attitudinalist” political scientists run phony tests over garbage data to uncover judges’ hidden political biases. Law profs teach hard cases with an air of cynicism. The Supreme Court commentariat zeroes in on a handful of 5-4 cases, and advocacy organizations use them to feed partisan passions and to mobilize the rabble. Justice Gorsuch is up against a lot in his insistence on viewing law from the vantage of its normal operation. For just that reason, it’s good to see the judicial power of the United States entrusted to a judge who gets the point.
The core of the book is formed by four chapters on the Constitution and separated powers; originalism and textualism; “the art of judging” (it requires judicial humility and is roughly the opposite of what Judge Richard Posner used to practice, Justice Gorsuch urges in that rather pointed chapter); and justice for all. While the arguments aren’t entirely novel (how much more is there still to say, really, in defense of originalism and textualism after lo these many decades?), the presentation is elegant and forceful throughout, and it is powerfully illustrated by well-chosen excerpts from Justice Gorsuch’s opinions. While one often wonders how somewhat abstract jurisprudential theories might shake out in individual cases, Justice Gorsuch demonstrates the how and the why. As I read those chapters, I could imagine the justice saying, “If you, dear reader, think I’m being inconsistent, show me how and why.” In that way, the book reflects admirable judicial candor.
Justice Gorsuch’s substantive constitutional commitments are by now known even to casual observers of the Supreme Court. The Justice doesn’t like broad delegations of legislative powers. He doesn’t like the Chevron doctrine, which requires courts to defer to any “reasonable” agency interpretations of ambiguous statutes. He doesn’t like agency adjudication, as distinct from adjudication by independent judges. He adamantly insists on the meticulous observance of the Constitution’s rights guarantees. And, at variance with common suggestions to the effect that originalism is conservative politics in drag and that every Republican appointee is a law-and-order fanatic, Justice Gorsuch has a real soft spot for individual underdogs, from criminal defendants to immigrants.
All those orientations run together in one of Justice (then Judge) Gorsuch’s best-known opinions, Gutierrez-Brizuela v. Lynch, excerpted in this book. To simplify a bit: Mr. Gutierrez-Brizuela, a Mexican national, applies for citizenship and by some miracle finds himself a competent lawyer, who advises his client in reliance on an administrative regulation that the Tenth Circuit had upheld as “reasonable” under Chevron. His case goes to the Board of Immigration Appeals and the BIA says: per Chevron, the Tenth Circuit held that our rule was a reasonable interpretation of the statute at issue—but, by definition, not the only reasonable interpretation. We’ve just thought of another reasonable interpretation, which we will now apply retroactively and guess what, you slob: you’re deported. And we’ll get deference on that determination, too, because—you guessed it—Chevron (actually a Supreme Court decision called Brand X, but you don’t want to know) grants it. The unfailingly well-mannered, courteous, judicious Neil M. Gorsuch gets really upset at the idea that an Article III court has to waive through decisions “by an avowedly politicized administrative agent seeking to pursue whatever policy whim may rule the day.” You don’t?
Justice Gorsuch’s pro-immigrant, pro-defendant decisions have won him grudging respect among some liberals and libertarians. My hunch is that the surprises won’t end there. Justice Gorsuch holds skeptical views—very skeptical views—of the “dormant” Commerce Clause, which prohibits states from discriminating against interstate commerce; and of expansive doctrines governing the federal preemption of state law. For folks with the sheer gall to engage in interstate commerce, those turn out to be the only legal defenses against rapacious states and trial lawyers. My buddies in the corporate defense bar may be in for a very rough ride.
I’m inclined to think that Justice Gorsuch and like-minded jurists—foremost including Justice Clarence Thomas—are getting this wrong. In fairness, though, the law on the dormant Commerce Clause and preemption indeed is quite incoherent and needs some sorting out. Come to think of it, that is true of lots of constitutional and administrative law. Justice Gorsuch is keenly aware of the hard work that lies ahead. Chevron aside, consider two further examples:
In a 2018 case called Oil States Energy, the U.S. Supreme Court held that invention patents may be cancelled administratively. (For most of our history, that could be done only in Article III courts.) Justice Gorsuch dissented strenuously, for reasons discussed in the book: we cannot sport away private, vested rights and displace Article III courts quite so easily. Justice Thomas, the author of the majority opinion, actually agreed with that position; he just thought that patents aren’t the sort of rights that fall under the prohibition. Okay, then: what are the rights that always require adjudication by independent courts, not biased administrators? While Justice Gorsuch’s opinion provides some useful pointers, a robust, coherent answer to that truly nasty question and a revamp of the hopelessly messed-up case law will have to await future decisions.
Much the same is true of Justice Gorsuch’s dissent in Gundy v. United States, which forcefully urged a judicial “non-delegation” doctrine to curb the delegation of legislative powers to executive and administrative agencies. (Excerpts from then-Judge Gorsuch’s opinion in an earlier, near-identical Tenth Circuit case appear in the book.) Here again, the problem is truly difficult. Here again, Justice Gorsuch’s opinions provide useful markers but fall short of a full-blown theory that might prove workable over the long run of cases.
I haven’t managed to get the tone of those observations quite right. They’re meant not as criticism but as encouragement. A constitutional rehabilitation project of the kind I’ve hinted at cannot be accomplished, and should not be attempted, in a book intended for a broad audience. It cannot be accomplished in a handful of individual judicial opinions, either; it is a long-term project for the entire Court. It will require judicial courage, patience, a certain humility, and a deeply grounded understanding of the Constitution and the way it’s supposed to work.
Neil M. Gorsuch understands all that, and he possesses those virtues in spades. To our great good fortune, he has just the right day job.