As the Supreme Court launches a term filled with some of the most bitterly divisive and provocative issues of the day, conservative Justice Neil Gorsuch has a message for anyone who might believe that it’s a judge’s job to fix politics: “Do you really want me to rule the country?”
“It is a raucous republic and the battle of ideas is what our founders had in mind,” he said in a lengthy interview with CNN. What they didn’t have in mind, “was nine old people in Washington sitting in robes telling everybody else how to live.”
Such judicial modesty comes weeks before the Supreme Court will return from a summer recess and decide cases concerning LGBT rights, the Second Amendment, immigration and maybe even abortion and health care – all in the heat of the presidential campaign.
The newly solidified conservative majority is finding its footing after a term of transition and the liberals on the bench are bracing for a hard right turn.
Gorsuch, nominated in 2017 by President Donald Trump, has proven to be a solid conservative vote, following largely in the footsteps of the late Justice Antonin Scalia, while developing his own independent streak as well.
In a wide-ranging interview conducted in an ornate conference room at the Supreme Court, Gorsuch responded to critics of his judicial philosophy. He also discussed the confirmation process, Trump’s tweets and campaign rhetoric, his own views on overturning settled law, and even the surprise he had for Brett Kavanaugh.
‘This is not a tyranny of a few’
At oral arguments and in his opinions, Gorsuch is setting out on a singular course. He aims not just to solve the cases at hand, but to change the way people think about the law. His project is in part to finish the work of Scalia by reinvigorating a judicial philosophy that looks to the original meaning of the Constitution.
He sees a judge’s job as enforcing that approach “as faithfully and fearlessly” as possible. “The most vulnerable among us has the same rights as the richest and the most powerful,” he said.
But his approach to the law rubs a number of different groups, who believe it writes them out of the Constitution, the wrong way. Like the more liberal justices on the court, they believe the document evolves with time. It’s a battle between originalists and so-called “living constitutionalists.”
Gorsuch takes on their philosophy arguing that it permits judges to add things into the Constitution that aren’t there.
“I say the country is owned by We The People. We wrote a Constitution, we put down what we wanted to put in it. We can amend it when we wish and it is not up to nine people to tell 330 million Americans how to live.”
In a new book, “A Republic, If You Can Keep It,” he puts it another way: Under originalism a judge can’t add or subtract rights “willy nilly.”
“If you want to change the Constitution, you can do it,” he says.
For critics of that approach – those who see a broader role for the courts – he sternly says: “I say get involved. This is a republic. This is not a tyranny of a few.”
When to overturn settled law
He believes that the confirmation process, including his own where Democrats accused him of taking the seat owed to former President Barack Obama’s nominee, Merrick Garland, is so political that it leaves a dangerous impression that that judges are just “politicians in robes.”
“That’s just radically inconsistent with my lived experience as a lawyer and a judge,” he said.
But he refused to call the process broken. “Oh gosh,” he said. “I’m not going to get involved in confirmation process politics—there’s nothing more political in the world today than that,” he said.
And given the opportunity to criticize Trump for his attacks on judges he moved gingerly.
It was Chief Justice John Roberts last fall who issued a rare statement pushing back on some of the President’s attacks. Gorsuch declined to call the President out by name.
Speaking broadly he said, however, “I’d say to anybody who questions what a wonderful inheritance we have in our courts and the rule of law in this country, go spend six weeks in a court in another country of your choice and come back and tell me what you think about our courts in this country.”
On the campaign trail, Gorsuch is a favorite topic for Trump.
“We have a Supreme Court justice, Judge Gorsuch, who will save – how about a thing called your Second Amendment right – OK – remember that? If crooked Hillary got elected, you would not have a Second Amendment, believe me. You’d be handing in your rifles,” the President said in Alabama in 2017.
If that blurs the line between politics and the law, Gorsuch won’t say.
“I’m not going to get involved in politics or political campaign rallies,” he said, “that’s not my business. My business is to make sure that your rights – all of them – are enforced.”
Critics point out that as Trump’s policies are stampeding toward the courts, Gorsuch voted to allow the President’s travel ban. He voted to permit a citizenship question on the census. Over the summer, he voted to clear the way for the Trump administration to use $2.5 billion from the Department of Defense to construct parts of a wall along the southwestern border.
Last term, his liberal colleagues Elena Kagan and Stephen Breyer expressed concern that the court was moving too quickly to overturn precedent.
“Well, that didn’t take long,” Kagan lamented in one 5-4 case where the court overruled 34-year-old precedent. “When a theory requires declaring precedent after precedent after precedent wrong,” Kagan said, “that’s a sign the theory itself may be wrong.”
Steering clear of any pending case, Gorsuch laid out some of his considerations concerning overturning past cases. “It would be wrong to say never. And on the other hand, it would be wrong to say always,” he said. “A judge has to consider, among other things, how well reasoned the opinion was. How carefully it was done. How long it’s been on the books.”
Last term, his language was more fierce when he chastised his colleagues for failing to overturn precedent related to the power of administrative agencies. The majority hadn’t gone as far as Gorsuch would have liked.
The court’s precedent at issue, he wrote, “emerges maimed and enfeebled – in truth, zombified.” He noted if the opinion ended up reducing the doctrine “to the role of a tin god – officious, but ultimately powerless—then a future Court should candidly admit as much and stop requiring litigants and lower courts to pay token homage to it.”
North Korea and separation of powers
For Gorsuch, the structure of government is his lodestar even more fundamentally so than the Bill of Rights.
“North Korea has an excellent Bill of Rights,” he offers.
“They promise all the rights we have, and a bunch more. Right to free medical care, right to free education, and my favorite, a right to relaxation.”
“Now, ask political prisoners how is that working out?” he queries.
For Gorsuch, those promises “aren’t worth the paper they’re written on” because there aren’t structures to keep the power “from flowing into one set of hands.”
In the interview he spoke about how any country – even North Korea – can have a robust Bill of Rights, but that it is undermined if there is not sufficient separation of powers.
“What happens when politicians become judges? When elected persons become judges? Do you really want your rights under law to be adjudicated by a bureaucrat who is appointed by a president and responsive to a president?”
And with flourish he adds: “Do you want me to make stuff up? I don’t think so. I have said judges wear robes not capes for that reason.”
Welcome to Kavanaugh
No longer the junior-most justice, Gorsuch says he welcomed the court’s newest member, Brett Kavanaugh, who he has known for some 40 years because they attended the same high school, Georgetown Prep, with a surprise.
Tradition holds that when a new member arrives, it’s up to the former junior justice to arrange a welcoming dinner. Justice Elena Kagan, knowing that Gorsuch and his wife love Indian food, organized a feast upon his arrival.
Gorsuch knew that a fancy exotic dinner wouldn’t be Kavanaugh’s thing.
“He is kind of a meat and potatoes kind of guy” Gorsuch said, and an avid fan of the Washington Nationals baseball team. The team features mascots who wear huge foam heads that depict Presidents George Washington, Abraham Lincoln, Thomas Jefferson and Theodore Roosevelt.
For the dinner, Gorsuch gathered his colleagues to celebrate Kavanaugh and arranged for the mascots to race through the halls of the Supreme Court.
“I didn’t tell anybody because I figured it might be better to ask forgiveness than permission,” Gorsuch quipped.
Gorsuch wouldn’t discuss pending cases and controversies, but brushed off fears of those questioning the new direction of the court.
“The wonder of the rule of law in this country is its consistency over time,” he said “and how people can order their affairs and their lives around our Constitution, or laws with incredible accuracy compared to so many other places in the world.”
“I’ve got great confidence in America,” he continued. “And I say to those who don’t, ‘Look elsewhere, where else would you rather be?”