by John Greenya
To my grandparents. As a boy, I could ride my bike to their homes and they were huge influences. My mom’s father, poor and Irish, started working to help support his family as a boy after losing his own dad. But the nuns made sure he got an education, and he became a doctor. Even after he passed away, I heard from grateful patients who recalled him kneeling by their bedsides to pray together. His wife, my grandmother, grew up in a Nebraska home where an icebox wasn’t something you plugged into the wall but something you lowered into the ground. With seven children, she never stopped moving—or loving.
My dad’s father made his way through college working on Denver’s trolley cars. He practiced law through the Great Depression. And taught me that lawyers exist to help people with their problems, not the other way around. His wife came from a family of pioneers. She loved to fish. And she taught me how to tie a fly.
I want to thank my friends. Liberals and conservatives and independents, from every kind of background and belief, many hundreds have written this committee on my behalf. They have been there for me always. Not least when we recently lost my uncle Jack, a hero of mine and a lifelong Episcopal priest. He gave the benediction when I took my oath as a judge eleven years ago. I confess I was hoping he might offer a similar prayer for me this year. As it is, I know he is smiling.
I want to thank my fellow judges across the country. Judging is sometimes a lonely and hard job. But I have seen how these men and women work with courage and collegiality, independence and integrity. Their work helps make the promises of our constitution and laws real for us all.
I want to thank my legal heroes. Justice White, my mentor. A product of the West, he modeled for me judicial courage. He followed the law wherever it took him without fear or favor to anyone. War hero. Rhodes scholar. And, yes, highest-paid NFL football player of his day. In Colorado today there is God and John Elway and Peyton Manning. In my childhood it was God and Byron White.
I also had the great fortune to clerk for Justice Kennedy. He showed me that judges can disagree without being disagreeable. That everyone who comes to court deserves respect. And that a legal case isn’t just some number or a name but a life story.
Justice Scalia was a mentor too. He reminded us that words matter—that the judge’s job is to follow the words that are in the law—not replace them with words that aren’t. His colleagues cherished his great humor too. Now, we didn’t agree about everything . . . . The Justice fished with the enthusiasm of a New Yorker. He thought the harder you slapped the line on the water, somehow the more the fish would love it.
Finally, there is Justice Jackson. He wrote clearly so everyone could understand his decisions. He never hid behind legal jargon. And while he was a famously fierce advocate for his clients as a lawyer, he reminded us that, when you become a judge, you fiercely defend only one client—the law.
By their example, these judges taught me about the rule of law and the importance of an independent judiciary, how hard our forebears worked to win these things, how easy they are to lose, and how every generation must either take its turn carrying the baton or watch it fall.
Mr. Chairman, these days we sometimes hear judges cynically described as politicians in robes. Seeking to enforce their own politics rather than striving to apply the law impartially. But I just don’t think that’s what a life in the law is about. As a lawyer working for many years in the trial court trenches, I saw judges and juries—while human and imperfect—trying hard every day to decide fairly the cases I presented.
As a judge now for more than a decade, I have watched my colleagues spend long days worrying over cases. Sometimes the answers we reach aren’t ones we would personally prefer. Sometimes the answers follow us home and keep us up at night. But the answers we reach are always the ones we believe the law requires. For all its imperfections, the rule of law in this nation truly is a wonder—and it is no wonder that it is the envy of the world.
Once in a while, of course, we judges do disagree. But our disagreements are never about politics—only the law’s demands. Let me offer an example. The first case I wrote as a judge to reach the Supreme Court divided 5 to 4. The Court affirmed my judgment with the support of Justices Thomas and Sotomayor—while Justices Stevens and Scalia dissented. Now, that’s a lineup some might think unusual. But actually it’s exactly the sort of thing that happens—quietly, day in and day out—in the Supreme Court and in courts across our country. I wonder if people realize that Justices Thomas and Sotomayor agree about 60 percent of the time, or that Justices Scalia and Breyer agreed even more often than that. All in the toughest cases in our whole legal system.
Here’s another example. Over the last decade, I’ve participated in over 2,700 appeals. Often these cases are hard too: only about 5 percent of all federal lawsuits make their way to decision in a court of appeals. I’ve served with judges appointed by President Obama all the way back to President Johnson. And in the Tenth Circuit we hear cases from six states—in two time zones—covering 20 percent of the continental United States. But in the West we listen to one another respectfully, we tolerate and cherish different points of view, and we seek consensus whenever we can. My law clerks tell me that 97 percent of the 2,700 cases I’ve decided were decided unanimously. And that I have been in the majority 99 percent of the time.
Of course, I make my share of mistakes. As my daughters never tire of reminding me, putting on a robe doesn’t make me any smarter. I’ll never forget my first day on the job. Carrying a pile of papers up steps to the bench, I tripped on my robe and everything just about went flying. But troublesome as it can be, the robe does mean something—and not just that I can hide coffee stains on my shirt. Putting on a robe reminds us that it’s time to lose our egos and open our minds. It serves, too, as a reminder of the modest station we judges are meant to occupy in a democracy. In other countries, judges wear scarlet, silk, and ermine. Here, we judges buy our own plain black robes. And I can report that the standard choir outfit at the local uniform supply store is a pretty good deal. Ours is a judiciary of honest black polyester.
When I put on the robe, I am also reminded that under our constitution, it is for this body, the people’s representatives, to make new laws. For the executive to ensure those laws are faithfully enforced. And for neutral and independent judges to apply the law in the people’s disputes. If judges were just secret legislators, declaring not what the law is but what they would like it to be, the very idea of a government by the people and for the people would be at risk. And those who came to court would live in fear, never sure exactly what governs them except the judge’s will. As Alexander Hamilton explained, “liberty can have nothing to fear from” judges who apply the law, but liberty “ha[s] everything to fear” if judges try to legislate too.
IN MY DECADE ON the bench, I have tried to treat all who come to court fairly and with respect. I have decided cases for Native Americans seeking to protect tribal lands, for class actions like one that ensured compensation for victims of nuclear waste pollution by corporations in Colorado. I have ruled for disabled students, prisoners, and workers alleging civil rights violations. Sometimes, I have ruled against such persons too. But my decisions have never reflected a judgment about the people before me—only my best judgment about the law and facts at issue in each particular case. For the truth is, a judge who likes every outcome he reaches is probably a pretty bad judge, stretching for the policy results he prefers rather than those the law compels.
As a student many years ago I found myself walking through the Old Granary burial ground in Boston, where Paul Revere, John Hancock, and many of our founders are buried. I came across the tombstone of a lawyer and judge who today is largely forgotten—as we are all destined to be soon enough. His name was Increase Sumner. Written on his tombstone over two hundred years ago was this description—“As a lawyer, he was faithful and able; as a judge, patient, impartial, and decisive; In private life, he was affectionate and mild; in public life, he was dignified and fir
m. Party feuds were allayed by the correctness of his conduct; calumny was silenced by the weight of his virtues; and rancor softened by the amenity of his manners.”
These words stick with me. I keep them on my desk. They serve for me as a daily reminder of the law’s integrity, that a useful life can be led in its service, of the hard work it takes, and an encouragement to good habits when I fail and falter. At the end of it all, I could hope for nothing more than to be described as he was. If confirmed, I pledge that I will do everything in my power to be that man.
Appendix B
Honorable Neil M. Gorsuch, 2016 Sumner Canary Memorial Lecture: Of Lions and Bears, Judges and Legislators, and the Legacy of Justice Scalia, 66 Case W. Res. L. Rev. 905 (2016)
Available at: http://scholarlycommons.law.case.edu/caselrev/vol66/iss4/3
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2016 Sumner Canary Memorial Lecture: Of Lions and Bears, Judges and Legislators, and the Legacy of Justice Scalia
Honorable Neil M. Gorsuch
Follow this and additional works at: http://scholarlycommons.law.case.edu/caselrev
Part of the Law Commons
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CASE WESTERN RESERVE LAW REVIEW·VOLUME 66·ISSUE 4·2016
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OF LIONS AND BEARS, JUDGES AND LEGISLATORS, AND THE LEGACY OF JUSTICE SCALIA
Honorable Neil M Gorsuch
If you were looking for a talk tonight about the maddening maze of our civil justice system—its exuberant procedures that price so many out of court and force those in it to wade wearily through years and fortunes to win a judgment—you came to the right place. Almost.
When Professor Adler kindly asked me to share a few words with you tonight, that was my intended topic. I’d just finished penning opinions in two cases. One was older than my law clerks and had outlived many of the plaintiffs. The other had bounced up and down the federal court system for so long it was nearly as ancient as Cleveland’s championship drought. You know you’re in trouble when the Roman numeral you use to distinguish your opinion from all the others of the same name draws closer to X than I. Needless to say, I was eager to talk about civil justice reform.
But that was then and this is now. Since Professor Adler extended his invitation, the legal world suffered a shock with the loss of Justice Scalia. A few weeks ago, I was taking a breather in the middle of a ski run with little on my mind but the next mogul field when my phone rang with the news. I immediately lost what breath I had left, and I am not embarrassed to admit that I couldn’t see the rest of the way down the mountain for the tears. From that moment it seemed clear to me there was no way I could give a speech about the law at this time without reference to that news.
So tonight I want to say something about Justice Scalia’s legacy. Sometimes people are described as lions of their profession and I have difficulty understanding exactly what that’s supposed to mean. Not so with Justice Scalia. He really was a lion of the law: docile in private life but a ferocious fighter when at work, with a roar that could echo for miles. Volumes rightly will be written about his contributions to American law, on the bench and off. Indeed, I have a hard time thinking of another Justice who has penned so many influential articles and books about the law even while busy deciding cases. Books like A Matter of Interpretation and Reading Law that are sure to find wide audiences for years to come.
But tonight I want to touch on a more thematic point and suggest that perhaps the great project of Justice Scalia’s career was to remind us of the differences between judges and legislators. To remind us that legislators may appeal to their own moral convictions and to claims about social utility to reshape the law as they think it should be in the future. But that judges should do none of these things in a democratic society. That judges should instead strive (if humanly and so imperfectly) to apply the law as it is, focusing backward, not forward, and looking to text, structure, and history to decide what a reasonable reader at the time of the events in question would have understood the law to be—not to decide cases based on their own moral convictions or the policy consequences they believe might serve society best. As Justice Scalia put it, “[i]f you’re going to be a good and faithful judge, you have to resign yourself to the fact that you’re not always going to like the conclusions you reach. If you like them all the time, you’re probably doing something wrong.”
It seems to me there can be little doubt about the success of this great project. We live in an age when the job of the federal judge is not so much to expound upon the common law as it is to interpret texts—whether constitutional, statutory, regulatory, or contractual. And as Justice Kagan acknowledged in her Scalia Lecture at Harvard Law School last year, “we’re all textualists now.” Capturing the spirit of law school back when she and I attended, Justice Kagan went on to relate how professors and students often used to approach reading a statute with the question “[G]osh, what should this statute be,” rather than “[W]hat do the words on the paper say?”—in the process wholly conflating the role of the judge with the role of the legislator. Happily, that much has changed, giving way to a return to a much more traditional view of the judicial function, one in which judges seek to interpret texts as reasonable affected parties might have done rather than rewrite texts to suit their own policy preferences. And, as Justice Kagan said, “Justice Scalia had more to do with this [change] than anybody” because he “taught” (or really reminded) “everybody how to do statutory interpretation differently.” And one might add: correctly.
I don’t think there is any better illustration of Justice Kagan’s point than the very first opinion the Supreme Court issued after Justice Scalia’s passing. That case—Lockhart v United States—involved the question how best to interpret a statute imposing heightened penalties for three types of offenses—“[1] aggravated sexual abuse, [2] sexual abuse,” and “[3] abusive sexual conduct involving a minor or ward.” The majority opinion by Justice Sotomayor relied on the rule of the last antecedent and held that the phrase at the end of the sentence—“involving a minor or ward”—modifies only the last offense listed. So that the statute’s penalties apply whenever there is aggravated sexual abuse, or sexual abuse, or whenever there is abusive sexual conduct involving a minor or ward. In dissent, Justice Kagan noted that, in “ordinary” English usage, the rule of the last antecedent bears exceptions and that sometimes a modifying phrase at the end of a sentence reaches further back to earlier antecedents too. And, in Justice Kagan’s estimation, an ordinary and average reader of the language at issue here would have thought the phrase “involving a minor or ward” does just that, modifying not just its immediate but all three of its antecedents. So for the statutory penalties to apply, Justice Kagan argued, the government must always prove some kind of sexual abuse involving a minor. In support of her suggestion that an exception rather than the rule should apply to this particular statutory language, Justice Kagan offered this gem of an analogy: “Imagine a friend told you that she hoped to meet ‘an actor, director, or producer involved with the new Star Wars movie.’ You would know immediately that she wanted to meet an actor from the Star Wars cast—not an actor in, for example, the latest Zoolander.” So too here, the Justice reasoned.
As you can see, the two sides in Lockhart disagreed pretty avidly and even colorfully. But notice, too, neither appealed to its views of optimal social policy or what the statute “should be.” Their dispute focused instead on grammar, language, and statutory structure and on what a reasonable reader in the past would have taken the statute to mean—on what “the words on the paper say.” In fact, I have no doubt several Justices found themselves voting for an outcome they would have rejected as legislators. Now, one thing we know a
bout Justice Scalia is that he loved a good fight—and it might be that he loved best of all a fight like this one, over the grammatical effect of a participial phrase. If the Justices were in the business of offering homages instead of judgments, it would be hard to imagine a more fitting tribute to their colleague than this. Surely when the Court handed down its dueling textualist opinions the Justice sat smiling from some happy place.
But of course every worthwhile endeavor attracts its critics. And Justice Scalia’s project is no exception. The critics come from different directions and with different agendas. Professor Ronald Dworkin, for example, once called the idea that judges should faithfully apply the law as written an “empty statement” because many legal documents like the Constitution cannot be applied “without making controversial judgments of political morality in the light of [the judge’s] own political principles.” My admirable colleague, Judge Richard Posner, has also proven a skeptic. He has said it’s “naive” to think judges actually believe everything they say in their own opinions; for they often deny the legislative dimension of their work, yet the truth is judges must and should consult their own moral convictions or consequentialist assessments when resolving hard cases. Immediately after Justice Scalia’s death, too, it seemed so many more added their voices to the choir. Professor Laurence Tribe, for one, wrote admiringly of the Justice’s contributions to the law. But he tempered his admiration by seemingly chastising the Justice for having focused too much on the means by which judicial decisions should be made and not enough on results, writing that “interpretive methods” don’t “determine, much less eclipse, outcome[s].”
Well, I’m afraid you’ll have to mark me down as naive, a believer that empty statements can bear content, and an adherent to the view that outcomes (ends) do not justify methods (means). Respectfully, it seems to me an assiduous focus on text, structure, and history is essential to the proper exercise of the judicial function. That, yes, judges should be in the business of declaring what the law is using the traditional tools of interpretation, rather than pronouncing the law as they might wish it to be in light of their own political views, always with an eye on the outcome, and engaged perhaps in some Benthamite calculation of pleasures and pains along the way. Though the critics are loud and the temptations to join them may be many, mark me down too as a believer that the traditional account of the judicial role Justice Scalia defended will endure. Let me offer you tonight three reasons for my faith on this score.