by Neil Gorsuch
The government is not without a backup argument, but it appears to bear problems of its own. The government suggests that the Sixth Amendment doesn’t apply to restitution orders because restitution isn’t a criminal penalty, only a civil remedy that “compensates victims for [their] economic losses.” But the Sixth Amendment’s jury trial right expressly applies “[i]n all criminal prosecutions,” and the government concedes that “restitution is imposed as part of a defendant’s criminal conviction.” Federal statutes, too, describe restitution as a “penalty” imposed on the defendant as part of his criminal sentence, as do our cases. Besides, if restitution really fell beyond the reach of the Sixth Amendment’s protections in criminal prosecutions, we would then have to consider the Seventh Amendment and its independent protection of the right to a jury trial in civil cases.
If the government’s arguments appear less than convincing, maybe it’s because they’re difficult to reconcile with the Constitution’s original meaning. The Sixth Amendment was understood as preserving the “ ‘historical role of the jury at common law.’ ” And as long ago as the time of Henry VIII, an English statute entitling victims to the restitution of stolen goods allowed courts to order the return only of those goods mentioned in the indictment and found stolen by a jury. In America, too, courts held that in prosecutions for larceny, the jury usually had to find the value of the stolen property before restitution to the victim could be ordered. And it’s hard to see why the right to a jury trial should mean less to the people today than it did to those at the time of the Sixth and Seventh Amendments’ adoption.
6.
ON ETHICS AND THE GOOD LIFE
Some time after I joined the Tenth Circuit, the University of Colorado Law School asked me to teach a course on legal ethics. Now, I know, some may wonder whether the course’s very title amounts to an oxymoron. But my immediate reaction was a little different. I believed the course important to the development of sound professional values. At the same time, though, I thought the class was supposed to be taught by some graying, battle-worn practitioner who could tell war stories to scare students straight. But then I looked in the mirror…and I signed up.
I went on to teach that course for many years. At some point each semester I’d ask the students to participate in this exercise. Imagine you’ve graduated, finally won entry to the bar, and are now busy working as a lawyer. You’re thumbing through documents a client gave you and you come across one that’s a smoking gun against your client’s interests. The other side has filed a discovery demand that clearly aims to secure the production of this very information. Lawyers are supposed to honor discovery requests, but this one’s poorly written and there’s a colorable argument that the document doesn’t fall strictly within its terms. Should you turn over the document? Or do you hide it, keep your client happy, and hope no one finds out the truth? Each year, about three-quarters of the class told me they’d withhold the document. Even if it meant a gravely disabled person on the other side wouldn’t win a warranted recovery. The students didn’t necessarily think hiding the document was the morally upright thing to do; these were wonderful students, good people, with strong values. But somehow, they thought, it was a professionally acceptable thing for a lawyer to hide the document. Some even thought a lawyer had a professional duty to act this way. No wonder so many lawyers are so unhappy these days and rates of depression, anxiety, alcoholism, suicide, and divorce for lawyers stand at about twice the national average. The law tends to breed workaholics and sometimes disconnection from family, friends, community, and even (true) ethics.
How have we gotten here? It’s a complicated story. But if there’s one thing I sought to pass along to my students, it’s that a life in the law doesn’t have to look like this. After the document production discussion, I would ask the class to spend five quiet minutes drafting their own obituaries; how would they like them to read? Each year, there’d be an understandable amount of groaning at the start of this exercise. But after a minute or two the room would grow silent, even somber. When the time was up, I’d ask a few brave students to read their drafts aloud. Not once did their obituaries brag about how many hours they worked, what their billable hourly rate was, how many clients they lured, whether they had argued one or a hundred cases, what kind of car they drove, how big their house was, or whether they wound up with their name on their law firm’s front door. Each one spoke of hoping to be remembered as kind; loved by family and friends; someone who left the world a little better, or at least no worse off, for their presence.
At the end of the session I would read my students a tombstone inscription I found when I was a law student walking through colonial Boston. It spoke of a lawyer and statesman who is largely forgotten today but who was obviously loved by family and friends during his time. (You can find it on this page.) I would tell the class that I keep a copy of the epitaph on my desk as a sort of moral compass, a reminder of true north when the horizon seems hard to see, and as a source of encouragement to try again when I falter and fall short. I would then suggest to my students that they keep their own obituary drafts in their desk drawers and return to them every now and then so they might assess how their conduct is measuring up to their aspirations.
This chapter collects a sample of reflections I’ve offered over the years on the challenge of being a good lawyer and a good person.
A TRIBUTE
One of the special parts of my first year on the Supreme Court was the chance to serve beside my former boss Anthony Kennedy. When Justice Kennedy decided to retire at the end of our first full term together—after thirty years of service on the Supreme Court and another decade as an appellate judge on the Ninth Circuit—the Harvard Law Review asked me to contribute a few words to its next edition. I was delighted to have the opportunity not only to offer my personal tribute of thanks but also to discuss some of the lessons his example holds for me.
With Justice Kennedy’s retirement, the Supreme Court has lost one of the most consequential justices in its history. His formidable legal legacy is the focus of other tributes in this edition of the Harvard Law Review. For my part, though, the editors have asked me to focus not so much on Justice Kennedy as on Anthony Kennedy. That assignment is a particular honor and a very happy one. For as much as the justice has touched the life of the law, the man has touched the lives of those around him in ways that hold rich lessons all their own.
There is this man’s deep civility and respect for all persons. I first came to know Justice Kennedy as his “step clerk.” Justice White had hired me to serve him in his first year in retirement, sitting by designation on the Tenth Circuit. But Justice Kennedy also “adopted” me and treated me as every bit a member of his law clerk family. The year began when the justice asked all of us to come to his home on the weekend to discuss the first set of merits cases. His only instruction: bring the whiteboard. So we trucked out to Virginia in a clunker with the whiteboard stashed in the trunk. We spent the day hunkered down debating cases, covering the whiteboard with arguments and diagrams. From that moment to the end of the year, I witnessed a gentle man who never raised his voice, who treated every lawyer he saw in the courtroom and every person he encountered in the halls as he would wish to be treated, and who afforded the most routine case with the same care as the (seemingly) most important. In his already long and distinguished judicial career, the justice had encountered before many of the issues we clerks faced for the first time. But all the same, he would follow the judicial process scrupulously from start to finish in every case—carefully reading the briefs, listening to the parties, talking over the issues with clerks and colleagues, and only then deciding. His enthusiasm, his level of attention to detail, and his interest in hearing different views was infectious. When at last he reached his final judgment and found himself at odds with a colleague or clerk, he would not hesitate to disagree, but he would never do it disagreeably.
There is his humi
lity and his love of country and our courts. When years later I became a circuit judge, I asked the boss to come to Colorado to swear me in. Of course, he came. And, of course, I took the chance to seek his advice. His answer? Listen. Listen to your colleagues, to the parties, to scholars in the field. There’s a reason federal courts of appeals sit on panels of three, he reminded me, and a reason why we engage in such a painstaking process before we announce our judgments. Do all you can, he said, to carry on the traditions of our independent judiciary and recognize always that, to those involved, the case before you may be the most important thing in their lives. Know, too, that you are part of something much greater than yourself, the promise of the rule of law in our time. This nation’s independent courts may not be perfect but their promise of equal justice under law for all persons represents one of the noblest of human aspirations in any place or age. Justice Kennedy could say these things because he lived these things.
There is his kindness. After Justice Kennedy swore me in for a second time, now as his colleague on the Court, my family moved to Washington. It was the first time in our history that a justice and his former clerk had the chance to serve together on the Court. No surprise by now, the justice and his wife, Mary, offered us a welcome that could not have been more gracious. For as everyone who knows them knows, Mary Kennedy is every bit as special as her husband. The Kennedys were among the first to invite us to dinner and to introduce us to their friends. They even helped with our house hunt. When I circulated a draft of my first opinion for the Court, Justice Kennedy raced to join before anyone else. Even the fickleness of less-than-modern technology couldn’t keep him from that object. I circulated my draft late in the day, after Justice Kennedy had gone home. When his clerk tried to fax the opinion to him, the machine wouldn’t cooperate. But Justice Kennedy didn’t want to risk waiting to get a copy until the next morning, so he requested that someone drive a hard copy out to his house. Before the open of business the next morning I received a handwritten “join memo”—one I keep in the top drawer of my desk and will always treasure.
As great as Justice Kennedy’s legal legacy may be, I cannot help but wonder if today the person may have as much to teach us as the jurist. I’ve offered only a few (among so many) examples of the man I’ve known; the truth is, everyone who knows Tony and Mary Kennedy is blessed with an overabundance of memories like these. But what we’ve all witnessed perhaps boils down to this. The rules Tony Kennedy has chosen to follow in his life he’s chosen carefully and worked hard to abide. They are timeless, tested, and true. They represent what is best, if these days too often missing, in our profession and our culture. Treat others as you would have them treat you, remembering that those with whom you disagree love this country every bit as much as you do. Strive for humility in argument and in making decisions, knowing that everyone around you has something to offer and teach. Accept praise and criticism with equal equanimity, realizing that life’s real joy lies in serving something greater than yourself. Don’t dwell on this nation’s imperfections so much that you forget that its aspirations to the rule of law and to the equal protection of all persons are among the most worthy ambitions in human history. Along the way in life, too, try to be kind, for whatever regrets you may have in life you’ll never regret being kind. Of course, no one is perfect, we all stumble and struggle, so learn to dust yourself off, hold fast, and aim again at getting it right. These are the simple but enduring truths this man has sought to honor in his life. It is a life that is a grace to our profession and our nation and a model for those who follow.
WHITE AND MURRAH
I’ve given variations of this speech to different groups of students and young lawyers in the Tenth Circuit over the years. It’s a tribute to two great men from my part of the country. Some readers may have heard of one, though I’d guess that most haven’t heard of the other. But the lives of both have much to offer—and not just about how to live a life in the law. Each achieved professional success without abandoning the qualities that made them good persons. Really, it was that very quality that made them such great lawyers and judges. They practiced a fearless integrity everywhere in their daily lives.
The public has always held competing perceptions of the legal profession. On the one hand, there is the ideal of Clarence Darrow, Daniel Webster, and Louis Brandeis. Honorable men of the law. On the other hand, there are the classic scoundrels—the lawyers who seek to buy judges and the judges who are eager to be bought. In fact, it often seems that the scoundrel image overshadows the ideal. Even Judge Laurence Silberman of the D.C. Circuit, one of this nation’s most respected judges, has observed that a great many lawyers today “hate what the practice of law has become.” Another leading federal judge, Patrick Schiltz, has documented just how unhealthy, unhappy, and (yes) unethical our profession has become, pointing to alarmingly high rates of depression, alcoholism, divorce, and suicide.
I cannot dispute the grim numbers or the wisdom of my colleagues. But I’d like to suggest to you that this sad picture need not define the profession—that you can be both an ethical person and an ethical lawyer. In fact, it seems to me that you must be one to be the other. In the words of one favorite former professor of mine, Charles Fried, “Lawyers are people too!” There is no distinction between the professional you and the personal you.
To illustrate this point, I share a few stories about two of this country’s greatest lawyers. The first, Byron White, sat on the Supreme Court for over three decades, and remains at least somewhat in the public consciousness. The second man, a former chief judge of the Tenth Circuit, Alfred Murrah, also served on the federal bench for over thirty years but is less recognizable today—although this certainly wasn’t the case in his time, and most certainly wasn’t the case in his home state of Oklahoma.
Both of these men had a hardscrabble upbringing in the West of the early twentieth century. Byron White grew up during the Great Depression and went to work on a sugar beet farm on the Colorado plains at age seven. He described his hometown of Wellington as a town of “350 God-fearing souls,” where “[e]verybody worked for a living. Everybody. Everybody.” From an early age, White excelled at everything. As valedictorian of his high school, he earned a scholarship to the University of Colorado. Once there, he became maybe the most celebrated college football player of his time, an All-American and a Heisman Trophy runner-up. But White hardly ignored his studies. He was elected to Phi Beta Kappa and graduated first in his class. From there, he earned a Rhodes Scholarship and later enrolled in Yale Law School. But even that wasn’t all; he also played professional football to make some extra money. He led the league in rushing and was famously the highest-paid player of his day ($15,000, I think). He found time, too, to serve in the South Pacific during World War II and was twice decorated with the Bronze Star. Following law school, White clerked for the Supreme Court, worked in private practice in Denver, then joined the Kennedy administration as the deputy attorney general. Only about a year later, President Kennedy appointed him to the Supreme Court at age forty-four.
Judge Murrah was born in rural Oklahoma. His mother died when he was seven and his father took the family to Alabama to find work. Just eight years later, when Murrah was fifteen, his father passed away too. Now an orphan, Murrah decided to make his way back to Oklahoma. He did it by riding freight cars and doing odd jobs along the way. Back in his home state, a family agreed to care for him in exchange for work on their ranch. Like White, Murrah emerged from his rough-and-tumble childhood to graduate first in his high school class and go on to the state university. And like White, Murrah came to the federal bench at a very young age. President Franklin Roosevelt appointed him to the district court at age thirty-two and to the Tenth Circuit at age thirty-five. Judge Murrah went on to serve on the circuit for thirty years, and as the chief judge for eleven of those. After retiring, Murrah didn’t just disappear to Fort Lauderdale either. Instead, he led the Federal Judicial Center, where he s
pearheaded the movement toward using pre-trial conferences, a development that has greatly streamlined federal litigation.
These short biographies and the accomplishments they chronicle, as interesting as they are, are not the real reason I bring up these men. Instead, I want to talk about how these men approached their jobs—how they viewed their role as lawyers and persons.
One thing that Justice White’s former colleagues and clerks remember about him was his dedication to work. This is a man who by age forty-four had achieved about all one could, yet he never took his nose off the grindstone. In his time on the Court, Justice White was famous for dissenting from denials of certiorari—he authored more than two hundred. In these dissents, he identified disagreements over the law between circuits. And he argued that the Court had an obligation to take and resolve these disagreements so that people in one part of the country weren’t treated differently from those elsewhere only because of the happenstance of geography. In his view, it was the judge’s job to resolve even the most seemingly mundane of these disputes and he never shied away from doing his job. No matter that it meant (a lot) more work.