A Republic, If You Can Keep It

by Neil Gorsuch

  Copyright © 2019 by Neil M. Gorsuch

  All rights reserved.

  Published in the United States by Crown Forum, an imprint of Random House, a division of Penguin Random House LLC, New York.

  crownpublishing.com

  CROWN FORUM with colophon is a registered trademark of Penguin Random House LLC.

  Photo credits are located on this page.

  LIBRARY OF CONGRESS CATALOGING-IN-PUBLICATION DATA

  NAMES: Gorsuch, Neil M. (Neil McGill), 1967– author. TITLE: A republic, if you can keep It / Neil Gorsuch. DESCRIPTION: New York : Crown Forum, 2019. | Includes bibliographical references and index. IDENTIFIERS: LCCN 2019012484 | ISBN 9780525576785 (hardback) | 9780525576792 (ebook) SUBJECTS: LCSH: Law—United States. | Judicial process—United States. | BISAC: BIOGRAPHY & AUTOBIOGRAPHY / Lawyers & Judges. | POLITICAL SCIENCE / Government / Judicial Branch. | BIOGRAPHY & AUTOBIOGRAPHY / Political. CLASSIFICATION: LCC KF213 .G67 2019 | DDC 349.73—dc23 LC record available at https://lccn.loc.gov/​2019012484

  Ebook ISBN 9780525576792

  Cover design: Joseph Perez

  Cover photograph: Beklaus/Getty Images

  v5.4

  ep

  CONTENTS

  Cover

  Title Page

  Copyright

  Introduction

  1. “A Republic, If You Can Keep It”

  Passing the Torch

  Welcome to New Citizens

  2. Our Constitution and Its Separated Powers

  Of Lions and Bears, Judges and Legislators

  “Power Without Law”?

  Gutierrez-Brizuela v. Lynch

  Caring Hearts v. Burwell

  United States v. Nichols

  Sessions v. Dimaya

  3. The Judge’s Tools

  Originalism and the Constitution

  A Case for Textualism

  United States v. Carloss

  Carpenter v. United States

  United States v. Games-Perez

  United States v. Rentz

  4. The Art of Judging

  On Courage

  (How) Do Judges Think?

  Of Intentions and Consequences

  On Precedent

  Henson v. Santander

  A.M. v. Holmes

  Direct Marketing Association v. Brohl

  American Atheists v. Davenport

  5. Toward Justice for All

  Law’s Irony

  Access to Affordable Justice

  A Note on Jury Trials

  Alejandre-Gallegos v. Holder

  Mathis v. Shulkin

  Hester v. United States

  6. On Ethics and the Good Life

  A Tribute

  White and Murrah

  But My Client Made Me Do It

  Ten Things to Do in Your First Ten Years After Graduation

  7. From Judge to Justice

  The East Room

  The Senate Judiciary Committee

  The Front Porch

  Photo Insert

  Dedication

  Acknowledgments

  A Note on Sources

  Photo Credits

  About the Author

  INTRODUCTION

  On a beautiful autumn afternoon in 2016, I found myself sitting outside enjoying lunch with a friend. In kind tones, he told me that he thought it was a shame I hadn’t made then-candidate Donald Trump’s publicly announced list of potential Supreme Court nominees. No matter, I replied: I was very happy with my job as a federal circuit judge and loved my life in Colorado. Soon enough the conversation moved on, a lazy meal ended, and we said our goodbyes. But before I managed to walk a block, my phone buzzed. It was a text from my lunch companion: A new, second list just came out and I had to see it.

  Looking back, I can see that this moment marked the beginning of the end of my life as I had known it. It wasn’t so obvious at the time. Even as the election neared, the polls reported that candidate Trump had little chance of becoming President Trump. What’s more, my friends told me, the second list was just a courtesy or maybe for show and only the first list mattered; so even if the polls proved wrong, there was no way I’d wind up the nominee. All that sounded about right to me.

  It came as a surprise, then, when I received a call two months later asking me to come to Washington to interview with the Vice President–elect. And it was an even greater surprise when, soon after that, the President-elect asked me to visit him in New York for a second interview.

  The shock still hadn’t worn off when I found myself sitting with my wife, Louise, in the White House on January 31, 2017. I could hardly believe that later in the evening the President would announce to the nation his intention to nominate me to the Supreme Court. The formal nomination would be transmitted to the Senate first thing the next day, February 1, on what would have been my father’s eightieth birthday. It was a lot to take in.

  Not just for me, but for my family too. Earlier in the day, the President tweeted: “Getting ready to deliver a VERY IMPORTANT DECISION! 8:00 P.M.” The media knew the decision concerned the Supreme Court pick but had no idea who the nominee would be. Television commentators speculated all day. Meanwhile, I sat quietly in the Lincoln Bedroom working on my remarks for the evening’s announcement. The President had offered me that historic spot as an office for the day. Knowing that Louise was born and raised in England, he gave her the use of the bedroom across the hall typically reserved for Queen Elizabeth and once occupied by Winston Churchill. Finding a little time late in the day, Louise rang her father back in England to tell him the news, but before she could say anything my father-in-law interjected that he had stayed up to watch the announcement. He had seen all the reporting, and he was sure that a friend of mine was about to get the nod. Louise replied that she was pretty sure I was the pick. No, he countered, the other fellow was caught on television just now driving toward Washington, and the newscasters were sure it was him. My father-in-law wasn’t even convinced when Louise told him that we had slipped through the White House kitchen entrance and were now in the Lincoln Bedroom. Maybe the real nominee was in a room down the hall?

  To be fair to my father-in-law, I was almost as surprised as he was that I was busy preparing for a nationally televised appearance in the White House. Only days earlier, I was happily living on a quiet country road called Lookout Ridge outside Niwot, Colorado, a little town named for a great Arapaho chief. Yes, I had written hundreds of judicial decisions over the last decade, sitting on an appellate court that serves about 20 percent of the continental United States. But few people outside of legal circles knew who I was.

  That life was now over. Our trip to Washington was enough to convince me of that. Two young White House lawyers, Mike and James, had arrived at our home on the Sunday afternoon before the scheduled Thursday evening announcement of my nomination with the task of accompanying Louise and me to the nation’s capital. I was out mowing the lawn and asked the pair to join us for our usual Sunday dinner of chicken curry. They accepted and, after our meal together, headed off to a local hotel with plans to return the next morning to collect us for the flight.

  Except at some point Monday morning the President told the media that he would be making his nomination on Tuesda
y instead of Thursday. Eager to break the news of the President’s pick before he could make his own announcement, reporters quickly descended on all of the homes of the prospective nominees, and satellite dishes, cameras, microphones, and lawn chairs soon crowded the end of our street.

  Mike and James, wearing suits and ties (not exactly standard attire in the Colorado countryside), approached the frenzy in their rental car and immediately realized that if they continued to our home they would be spotted. To avoid that, and after more than a few abandoned plans—including a run to the local superstore for casual clothes—the lawyers called to ask: Would Louise and I please hike a mile through the prairie, away from the reporters’ camp? They promised to pick us up at a trailhead. It may have sounded good to them, but the prospect of lugging my wife’s suitcase through brush seemed like a bad idea to me.

  Instead, Louise and I decided to ask a neighbor to drive us out. The reporters had already seen his car come and go a few times and maybe they wouldn’t notice—and, even if they did, it seemed to beat the alternative. Our neighbor, a dear friend, enthusiastically agreed. As we got into his car he said, “You know, Neil, I have a better idea. There’s another way out.” That was news to me. We had lived in our home for years, and while there were plenty of hiking trails and horse paths, there were no other roads out of the neighborhood. My friend pointed to a path that led from the back of a neighbor’s house to a nearby commercial barn and said he had managed to drive it before. “I grew up in Iran during the revolution, and I learned a thing or two there,” he continued. “And I would never buy a house with only one escape route.”

  So I fled my house—and, temporarily, the spotlight—by way of a bumpy farm track. My neighbor and I came to call our experience the Escape from Lookout Ridge. In retrospect, it wasn’t an “escape” at all. That drive threw me face first into the topsy-turvy world of modern-day Supreme Court confirmation battles.

  * * *

  —

  THIS BOOK WAS BORN of that confirmation process, though it is not about it. A decade earlier, the Senate had confirmed my judicial nomination to the Tenth Circuit by a voice vote, without opposition, and with the support of both of my home state’s senators, one a Democrat and the other a Republican. My hearing had lasted about fifteen minutes. This time around was different. As the months-long process unfolded, I heard people speak about the law and my decades in the profession in ways I didn’t recognize. Some suggested that as a judge I “liked” one group of persons or “disliked” another. In an effort to prove their point, they would sometimes single out a case where I had ruled for or against a particular kind of person but overlook plenty of cases where I had ruled the other way. Often, too, they would fail to engage the critical legal or factual reasons for the different outcomes. Others insisted that I promise to overrule certain decisions they disagreed with or reaffirm ones they preferred.

  By the end of it all, I came to realize that some today perceive a judge to be just like a politician who can and must promise (and then deliver) policy outcomes that favor certain groups. They see the job of a judge as less about following the law and facts wherever they lead and more about doing whatever it takes to “help” this group or “stop” that policy. And it struck me: It’s one thing to worry some judges might aggrandize their personal preferences over a faithful adherence to the law; but it’s another thing to think judges should behave like that.

  The idea that judges do—and should—allow their policy preferences to determine their legal rulings was foreign to my experience in the law. The judges I admired as a lawyer and those I have come to cherish as colleagues know that Lady Justice is portrayed with a blindfold for a reason. These judges strive every day to ensure that their decisions aren’t based on which persons or groups they happen to like or what policies they happen to prefer. They don’t pretend to be philosopher-kings with the right or ability to pronounce judgment on all of society’s problems. They never boast that they can foresee all the (often unintended) consequences of their decisions, let alone accurately calculate the optimal social policy outcome. They don’t seek favor or fear condemnation but recognize instead that the judge’s job is only to apply the law’s terms as faithfully as possible.

  As the process unfolded, I came to worry that our civic understanding about these things—about the Constitution and the proper role of the judge under it—may be slipping away. At our founding the people fought a revolution for the right not to be ruled by a monarch or any other unelected elite, judges included. They wanted to rule themselves. They knew the right of self-government promised many gifts. The right to chart our own destiny as a people. To speak our minds, work as we wish, exercise our own faiths or none at all, pursue happiness as we see it, and secure a more promising future for our children. And to do all this in a culture that cherishes differences and aspires to assure equal treatment under written law.

  The framers also knew that with a republic comes responsibility. Self-government is a hard business and republics have a checkered record in the court of history: Often they flicker brightly only to dim quickly. To succeed where so many others had failed, the framers understood that our republic needs citizens who know how their government works—and who are capable of, and interested in, participating in its administration. We won’t always agree about the right policies for the day. That’s to be expected, even treasured. After all, the capacity to express, debate, and test all ideas is part of what makes a republic strong. But to have any chance we must be able to listen as well as speak, to learn as well as teach, and to tolerate as well as expect tolerance. This republic belongs to us all—and it is up to all of us to keep it. I think that’s what Benjamin Franklin was getting at when he spoke publicly after he emerged from the Constitutional Convention. A passerby asked what kind of government the delegates intended to propose, and Franklin reportedly replied: “A republic, if you can keep it.”

  My hope in writing this book is to contribute to a revival of interest in the Constitution of the framers’ design and the judge’s role in it. The founders studied history and sought to learn from the problems and build on the successes of past governments, and the written Constitution they designed has secured our freedoms and allowed us to govern ourselves for two centuries while winning countless imitators across the globe. Every one of us who shares this inheritance must understand the great gift we’ve received—not least because every generation must take its turn shepherding the government of and by the people, and every generation must do its part to ensure that its blessings are passed safely to those who follow. Many wonderful people and groups, like the National Constitution Center, iCivics, and Colonial Williamsburg, are hard at work promoting greater understanding and appreciation of our Constitution. My effort here doesn’t pretend to be as encyclopedic as theirs. Nor is this book intended for academics. It is intended for citizens interested in introductory and personal reflections on our Constitution, its separation of powers, and some of the challenges we face in preserving and protecting our republic today. It doesn’t contain all the answers or respond to every criticism. Instead, the reflections found here represent just a sampling of the speeches, articles, essays, and judicial opinions I’ve offered over the course of my thirty-year life in the law on some of the subjects I care most about. In one sense, too, I am today just in the early part of a new journey, having taken my current job only recently. So in that way, as well, this book represents more of a starting than an ending point.

  * * *

  —

  FOR ME, ANY REFLECTION on our Constitution has to begin with an appreciation of its design. Of course, the Bill of Rights is vital: It promises the right to free speech, free exercise of religion, and so many other essential liberties. The Reconstruction Amendments and their promises of equal protection of the laws and due process are foundational too. But without limits on the powers of government, the promises of individual rights contained in these provisions a
re just that: promises.

  Our founders knew that the surest protections of human freedom and the rule of law come not from written assurances of liberty but from sound structures. As James Madison put it, men are not angels and the value of their promises depends on structures to enforce them. To protect the rights of the people, the founders designed a Constitution that cedes to the central government only certain limited and enumerated powers that are, in turn, carefully separated and balanced. To the people’s representatives in Congress, the framers gave the power to make new laws restricting liberty—but at the same time they insisted that our representatives follow a deliberate and difficult process designed to achieve broad consensus before any new law might emerge. To ensure that the laws able to survive this careful process are vigorously enforced, the framers gave the power to execute the law to a single president rather than trust management-by-committee—but they also sought to ensure that the president could never arrogate the power to make laws or judge persons under them. Finally, to guarantee that all persons, regardless of their popularity or prestige, would enjoy the benefit of the laws when disputes arise, the framers created an independent judiciary—but they insisted, too, that judges insulated from democratic processes must have no role in lawmaking and should be counterbalanced with juries composed of the people.

  In all these ways, the framers recognized that each branch had not only a virtue to offer but also a vice to guard against. When this design is respected, liberty is protected and the rule of law advanced. But when the executive or judiciary claims the power to write new legislation, or when the legislature or executive assumes the power to adjudicate cases, or when some other blurring of the lines occurs, liberty and the rule of law are placed at risk. Nor are these hypothetical worries or problems of the distant past. Later in the book, I share some everyday cases I encountered in my time as a judge where overlooking the structural protections of our Constitution had profound consequences for real people in our own time.