President Trump nominated Neil Gorsuch to the Supreme Court in late January 2017. In this episode, Justice Gorsuch talks to us about his recent book, "A Republic, If You Can Keep It," in which he reflects on the dramatic changes in his life after his nomination; his experience on the high court since his appointment and the judicial principles that guide him; and why he has enduring faith in the American people.
President Trump nominated Neil Gorsuch to the Supreme Court in January 2017. In this episode, Justice Gorsuch talks to us about his recent book, "A Republic, If You Can Keep It," in which he reflects on the dramatic changes in his life after his nomination; his experience on the high court since his appointment and the judicial principles of originalism and textualism that guide him; and why, despite all of our divisions, he has enduring faith in the American people.
The conversation took place on Sept. 19, 2019, a week after the book's publication, at the LBJ Presidential Library as part of the Tom Johnson Lecture series.
[Podcast introduction with theme music in the background]
President Lyndon Baines Johnson: So it's all here, the story of our time—with the bark off.
Mark Updegrove: That was President Lyndon Baines Johnson upon the dedication of his presidential library in 1971. Since then, the library has played host to the biggest names and best minds of our day, who have helped to tell the story of our times through candid, revealing conversations—with the bark off.
This podcast delivers them straight to you. Welcome to “With the Bark Off.” I'm Mark Updegrove.
Neil Gorsuch was appointed by Donald Trump to the U.S. Supreme Court in January 2017. I talked to Justice Gorsuch about his experience on the nation's highest court, his conservative judicial principles of originalism and textualism and how they guide his decisions, and his recent book, “A Republic, If You Can Keep It.”
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Mark Updegrove: How has your life changed since President Trump, uh, nominated you for the court in February of 2017?
Neil Gorsuch: How hasn’t it changed? [audience laughter]
I was living a pretty quiet life just outside of [inaudible], Colorado, on a little farm, and uhm, I’m not living there are any more. [audience laughter] Uh, and I was a circuit judge, uh, for the 10th Circuit, twenty percent of the continental United States. It’s a wonderful court, great people from Oklahoma, uh, to Utah, Wyoming down to, uh, New Mexico.
Uhm, I think—I think maybe, just… here's how my life changed, I, here's what I knew it was going to be a little different. So, as you may recall, President Trump wanted the announcement to be a surprise, and he sent two young lawyers out to collect me, to bring me back to the White House for the announcement. And so far, things were pretty normal actually as far as those things go. They called and said they're going to arrive on Sunday night. I was out mowing the lawn. Louise, Louise has a curry dinner on Sunday night, so I invited them for supper. So far that’s Sunday night. We usually have some guests over [inaudible] a thing. Well the next morning, the President of the United States tweeted. He said, “flash announcement: I'm going to, I’m gonna declare my Supreme Court choice tomorrow night at eight.” Well in about 15 minutes, it seemed like every media outlet in, in—in the 10th Circuit had descended upon the end of my street. [audience laughter] And I think the end of everybody’s street who were under consideration at the time.
And there’s only one little road in. The picture on the book is kind of near my old neighborhood. There’s only one road in and out. And—so the young men were going to come collect me but, but now they felt like they had a problem because if they drove in, they'd be spotted, and they didn’t want that. They're in their suits, so their first trick was they said, “we’ll come a little bit late. We're going to go to Walmart [audience laughter], and we're going to get some clothes more appropriate to the Colorado countryside” [audience laughter] and they did. They still have those clothes. And then they called and said, “you know, we've done that, but we realize our car’s a rental car with out of state license plates and if we drive in, they're going to know— and the gig is up. So, we have a better idea, judge. Would you mind, you and your wife hiking [audience laughter] about a mile through the prairie [audience laughter], and we’ll meet you at the trailhead [audience laughter].” Now, I--I love these young men. They’re great—they’re great young public servants, but I was not going to drag my wife's roller bag for a mile [audience laughter] through the prairie [audience laughter], and I said I want to help you out, but I can't do that. But I, I have an idea. This is what we're going to do, my next-door neighbor is an old dear friend and he'll drive us out and the reporters have seen his car come and go, and so they may not notice, if they do— I'm sorry, tough luck. And they begrudgingly said OK. I went over to my neighbor and he said “sure, I'll take you out” and then he said, “I have an even better idea, yet,” he said, “there's another way.” And I lived in the house for a long time and there's only one road. And he said, “yeah, but the horse trail, I’ve driven it, and I can get you out another way.” I said, “you can't drive that trail.” He said, “Neil, I grew up in Iran during the revolution [audience laughter], and I would never buy a house with only one way out.” [audience laughter]
You know, and everything did change. Uh, you know, I was very anonymous and, uhm, immediately I was not. You-- you know, you know life is changed when people start videoing you at a restaurant slurping your noodles from across the room, right? And for a while, I,I confess I mourned my anonymity a little bit, and then I realized, you know, we all know this, that when God takes something away, he usually gives you something in return, if you look for it. And, what he gave me, it is the greatest gift that I love to this day is the opportunity to see how much the American people love their country; how much they love their constitution. Not a day goes by without somebody coming up to me and saying “I'm praying for you, I’m praying for the country, I wish you well; I voted for this president, I didn't vote for this president, I wish you nothing but the best.” The kindness and goodness of the American people are incredible. I get letters; I get prayer cards; I get gifts.
My favorite gift was after the— shortly after the confirmation process. A woman in Florida wrote me and said that my socks were falling down [audience laughter], so she sent me a bag of socks [audience laughter]. And, and during the process, my favorite moment really drove it home for me was, I'm on a plane going back and forth between DC and Denver meeting with all of the senators. I met with 81 senators. Any senator who wanted to meet with me, I said I’d meet with them. And I did for as long as they wanted to meet. And, I'm pretty tired, going back and forth. And I get seated next to a six-year-old girl, and about 15 minutes into the flight, we start hitting some serious turbulence, and she leans over to me and she says, “would you mind if we held hands? So, we held hands, for about 20 minutes ‘til the turbulence passed and then she leaned over she said, “do you want to draw [audience laughter]?” We spent the next two hours coloring in her coloring book [audience laughter], and I was anonymous again for just a minute with a young girl that reminded me of my girls at that age. And at the end of the flight, her mom who did recognize me was seated behind us, and, and about two weeks later I got a thank you note, and it was two stick figures [audience laughter] in front of the airplane holding hands. I keep that in my office.
Yeah, the American people are very good.
Mark Updegrove: You write in the book, “a judge should apply the constitution or a congressional statute as it is, not as he thinks it should be. For me, respect for the separation of powers implies originalism and the application of the constitution and textualism in the interpretation of the statutes.” So, what do you mean by originalism and textualism?
Neil Gorsuch: Well, now we’re getting pretty wonky, aren’t we [audience laughter]? Uhm, but I'd be happy—I, I’d like to talk about this 'cause I think there's some misconceptions. What is originalism? It's a terrible label. It makes you think of powdered wigs, 18th century old white men. That's not what it's about. It, it’s not honoring just the original constitution, it’s honoring all of the constitution—its amendments and especially our second constitution, the 13th, the 14th, and the 15th amendments, and of course, the 19th amendment. Originalism is simply the idea that judges shouldn't change anything in it, should try to honor the words as written and as they were understood when they were written, that includes the 19th, that includes the 15th and the 14th amendments.
I consider, you know, Madison the father of the constitution, and I have his portrait above one fireplace in my office and above the other, I have John Marshall Harlan, the sole dissenter in Plessy v. Ferguson because I consider him the father of the reconstruction amendments. The only one who got the equal protection clause in its original meaning right, 'cause who can say segregation is consistent with the equal protection of laws. Pretty brave for him to do that. Kentucky-ian, looks pretty grumpy [audience laughter], wasn’t very popular, but he followed the original meaning of the constitution, all of the constitution.
So, what's the alternative? The alternative is something called, they like to call it, the living constitution, much better label, much better labeling, much better marketing. Who wants a dead constitution [audience laughter]? I don't want a dead constitution, I want an enduring, vital, and live constitution, too. A real one where your rights matter.
And here's what I worry about when judges depart from the original meaning and start evolving this constitution on their own: your rights can start disappearing. I'm not making this up. Let me give you an example: the 6th amendment to the constitution. You law students, I hope you know what I'm talking about. You have a right to a trial by jury of your peers. You have a right to confront the accusers against you. Now it doesn't take an academic to figure out what that means, and what those original words meant when spoken and written. Yet, the Supreme Court of the United States and some living constitutionalist decisions have said that sometimes you don't have a right to trial by jury because there are other things that are more important: the press of business, the difficulty of the matter, it's just not important enough. Yes, you're going to suffer maybe 10 more years in prison, but so what? They have… they balanced away your right.
What about the right to confront your accusers? Living constitutionalism, for a long time, until overruled recently an originalist decision, so that you don't always have a right to confront your accusers. That sometimes a piece of paper, written by a police officer, out of court long before the trial, you can hardly cross examine that. Good luck. Good luck, I don't care how good you are, you law students out there, tough to cross examine a piece of paper. I've tried [audience laughter]. That can be enough to send a person to prison for 20, 25 years or more. Originalism says no to that. Says, I might think that there are more important things, personally. I might think you’re a really bad person, and you should belong in jail forever, but it isn't up to me to decide what your rights should be.
You wrote them down, we the people wrote those things down, and we the people deserve all of them. And not only does departing from the original reason, meaning risk giving away rights, it also risks allowing judges to create rights that we never agreed to. We, the people, never agreed to. And there, my example for you is Dred Scott. That was the first decision by the United States Supreme Court [inaudible] in a serious matter that really radically departed from the original meaning of the constitution. The Supreme Court of the United States held, as most of you law students know, I hope, that a white person has a right to own a black person in the territories of the United States, and that that right emanates from the penumbra of the fifth amendment and its due process clause. And I'd ask you, scour the original meaning of due process, you're not gonna find that there.
Now, members of the court thought they were doing something good at the time. They really did. I think most of them thought they were well intentioned that they were doing something more important than following the original meaning; they were trying to avert an imminent civil war. But judges make rotten politicians, and they guessed wrong and instead of averting a civil war, they contributed to it. So for me, originalism is all about respecting the rights that are there, that we, the people, agreed to; this is a republic after all and you own it and not adding to it because I don't think nine people in Washington, however well intentioned, should be making up or taking away your rights.
Mark Updegrove: Let me challenge that, respectfully. Uhm, the constitution was written by a number of white men 232 years ago. 1787. How do you accurately infer what they would think in a 21st century [inaudible]?
Neil Gorsuch: It’s hard. Law, doing law is hard, isn’t it [audience laughter]? Law students, you finding that hard? Yeah, it's hard. Uhm, I’m not here to tell you it's easy, and I’m not here to tell you there's always a single right answer. All right? Uh, but it's what judges and lawyers have done for a millennium. That's what we do. I can find you a 100, if I can find you one Supreme Court decision that says that judges should interpret statutes and contracts according to their original public meaning, and I'm unclear why we shouldn't do the same thing with the constitution.
Our founders rejected; they knew what an evolving living constitution looked like. They came from England. They chose to write things down, instead. They chose a different path deliberately. So, is originalism tough? Yes. Are we gonna have disagreements? Yes. I'll give you an example. We had a double jeopardy case this last term: can the states try you for the exact same crime that the federal government tried you for already? Well, we have a double jeopardy clause in the constitution; and what did that originally mean? Did that prohibit two different sovereigns from trying you for the same crime? Justice Alito thought not for the majority of the court. Justice Ginsburg and I, doing originalist work, thought it did. That the double jeopardy clause prohibits that. So, there are going to be disagreements, but those are legal disagreements, not political disagreements. It's not Republican versus Democrat; that's not left versus right; that's what does, what do these terms mean and what have they historically meant, and Justice Ginsburg and I in that case saw it differently than the majority as to what it meant.
Mark Updegrove: Let me get away from the wonky stuff for one second.
Neil Gorsuch: Sure.
Mark Updegrove: We’ll come back to it in a moment. Uh, but we’ll go down that bumpy road we talked about. Talk about the confirmation process and what that was like for you.
Neil Gorsuch: Well, uhm, it’s changed a bit, hasn’t it, over the years [audience laughter]. My predecessor Antonin Scalia smoked a pipe during his confirmation [audience laughter]. My old boss Byron White, I think his testimony lasted about 15 minutes, actually, my hearing before the Senate Judiciary Committee the first time for the 10th circuit lasted 15 minutes, if that.
Things are a little different the second time around. Uhm, I came out of that process a little, little concerned. Uhm, I was honored; I was humbled; I was very impressed by the senators, individually. And, I admire the Senate, as an institution, greatly. And it's wonderful to be home in, here in the home of the master of the United States Senate. But I also saw I thought some misunderstandings about judges as we're kind of discussing. I, I will go ahead, and [inaudible] some folks would say you know, you really should be very firm in respecting precedent, always follow precedent. I got these three over here, you really gotta overrule [audience laughter]. Right? And then over here, I meet with this fella, and he said, oh, you gotta respect precedent, but those three over there, you gotta overrule.
We all have our favorites and our least favorites, right? Um, and I came to realize, you know, it's one thing to think the judges will sometimes follow their personal preferences because we're human and we made mistakes in error, and we don't always live up to our aspirations. And it's another thing to think that judges should do whatever they want or follow a political agenda and that judges are really just sort of politicians in robes. So that, that got me a little concerned [inaudible] maybe we're losing something and then I dug further into it, just really was the impulse for the book, and we do have a problem.
Only about a third of Americans can name the three branches of government, I learned. A third can name one. Seventy-five percent can name The Three Stooges [audience laughter], which is pretty remarkable when you think about it, right? It’s been awhile. And 10 percent, 10 percent think that Judith Sheindlin serves on the United States Supreme Court [audience laughter]. Now, those who are chuckling know who I’m talking about. That’s Judge Judy [audience laughter]. I like Judge Judy [audience laughter]. She is not one of my colleagues [audience laughter]. So, you know, I am a little concerned about civics, civic education and understanding. I’m also concerned about civility and how we treat one another when we disagree. I'm really concerned about young people getting involved in public service and not being scared away by it. So those are the reasons why I sat down and wrote the book, and that's what I got out of the confirmation process, was this, this project.
Mark Updegrove: Let me go back to civics, uhm, the importance of teaching civics. Here’s what you write in the introduction Justice, you write “to succeed where so many others have failed the framers of our constitution understood that our republic needs citizens who know how their government works and who are capable of and interested in participating in its administration.” Why are we seeing civics, uh, uh, uh, no interest in civics in this country? What has happened where at one point I think we knew a lot about the way our government works, uh, we understood the, the checks and balances, we understood the different branches. What has happened such that we don't—we no longer appreciate those things?
Neil Gorsuch: It is interesting, isn’t it? I, I— I don't know all of it, but we had to make room for STEM and other things like that our curriculum, good things. Uhm, President Johnson could tell us better. He was a teacher, wasn’t he? Uhm, but I am concerned, and I'm really concerned that young people are losing their appetite for public service. Uhm, we need you.
Uh, a republic is very special, right? And especially ours. It’s already the longest lived written national constitution in history. Republics don't last very long in history, if you go through the history books. It's easy enough to run an oligarchy or a monarchy, right? You only need a few people who are trained in how to run the place. Republic, we need a lot of people. And it’s the marketplace of ideas that makes us strong. And our country isn't-- doesn't have the benefit that some countries claim to have. A lot of countries are basically made up of people one culture with shared ancient history. We’re bound together by an idea. The idea that you have unalienable rights that come before government that we are all equal and that the people can govern themselves and do so wisely together with mutual respect and to listen as well as talk and to tolerate as well as demand tolerance. And that, that doesn't happen by itself, or overnight, or easily.
Uhm, I worry when I read that today only about 30% of millennials think it's important to live in a democracy. That has dropped precipitously over recent years. I worry when 60% or more of young people say they're not interested in going into public service because of the nature of our dialogue. I worry when 60% of Americans would fail the citizenship test that my wife had to take—and passed [audience laughter]. So those things concern me, I don't have all the cures. Uhm, I,I don't pretend to. I would just say that for whatever our difficulties, and we have plenty of them, but we've always had plenty of them, republics do, they're raucous places that we sometimes need to remember I think what Webster told us, Daniel Webster, right? Miracles don't happen in clusters and what happened here took 6,000 years to happen. We shouldn’t expect that it will happen all that often. Take care with this republic, please. It's a very special thing you've been given.
Mark Updegrove: There’s a chapter in the book titled “Toward Justice for All” that deals with the challenges that we currently face on access to justice. You are deeply concerned about that. Uhm, talk about your concerns and talk about how we might remedy, uh, that-that challenge that we face in this country today.
Neil Gorsuch: So I,I—I, you know, I am an optimist about America. But I think we also ought to be as a lawyer, as a judge clear eyed about some of our problems in our own house. And I think access to justice on the civil side and overcriminalization on the criminal law side are things we need to talk about. And I think it's a problem, when as a lawyer I could not afford my own legal services. And I really can't now [audience laughter].
It takes way too long to get to trial. When you get there, you don't get a jury. Young people walk out of law school with hundreds of thousands of dollars in debt, even if they want to serve Main Street clients, they can't afford to do so. We have rules that prohibit non-lawyers from providing even basic services: wills, uncontested divorces. We prevent non-lawyers from even investing in the legal profession. I can go to Walmart or a superstore and get all kinds of sophisticated services. I can't get somebody to help with a basic contract. Other countries, England, allows you to become a lawyer after three years of undergraduate study or one-year conversion course. Why do we require seven years university to do anything in the world? These are some questions I have.
On criminal law side, I wonder is it just about everything a federal crime [audience laughter]. I asked my law clerks, not long ago, how many federal crimes are there? I mean—there seem to be— a lot. And they came back quickly and said “4,500.” So that’s not, I mean, it's a big country maybe that’s, that's not too bad. Now remember, most crimes are, are punished by the states not, not, not the federal government. I said “Okay but these days now Congress has allowed bureaucracies to write additional rules that have criminal sanctions, so there are really new federal criminal laws as well. Did you catch those?” They said, “no, no, no, no, no this is just the statutes not the delegated stuff that the agencies…” Well I said, “Well those that-- you can go to prison for 20 years for those things too, so I want to know about those. How many of those are there?” And they came back to me, but it took them a long time [audience laughter]. They came back to me finally and said, “Boss, we don't know [audience laughter].” How could you not know, right? I mean that's a thing in the world, it should be, they said, “well they used to count but stopped about 20 years ago.” And they stopped counting because there are so many--there over 300,000 at that point. So, if you sell a mattress, never pull off that tag [audience laughter].
Remember Woodsy the Owl? Give a hoot, don't pollute? Do not misuse his likeness [audience laughter]. And if you sell ketchup, you better become familiar with something called the bostwick consistometer. Because if, if your ketchup runs through it too quickly, it's too runny, and if you don't label it substandard ketchup [audience laughter] you’re in big trouble [audience laughter]. I have law professor friends who tell me they think that just about everyone over 18 years old in this country is a federal criminal [laughter]. And it’s funny, but it also allows prosecutors to choose who to prosecute rather than pursuing crime that's obvious and before them. So, there's reason to talk about these things.
Mark Updegrove: You write in the book about the importance of juries. Why are juries important? If you have a, a learn-ed wise judge presiding over a case, why do you need a jury?
Neil Gorsuch: James Madison—sorry, John Adams said that the right to vote and the right to serve on a jury are the heart and lungs of democracy. And it's actually part of the separation of powers and the design of our constitution that the people— it's we the people who are in charge. We often forget that, don't we? Doesn't seem that way sometimes, but your right to vote is your way to stay in charge of the legislative and executive branches, indirectly, at times, but that's how we keep control— we the people. And to serve on a jury, the founders thought, is how you keep control of judges too. I think juries are very important. Maybe because I used to be a trial lawyer. I love juries. There's wisdom in juries. They see things that a judge can't see.
Mark Updegrove: We have an audience that's comprised of, of students largely of students, many law school students, uh, and many students who are contemplating a career in law. What advice would you give to those folks?
Neil Gorsuch: Well,I've got a whole chapter on that [audience laughter].
Mark Updegrove: yes.
Neil Gorsuch: Uhm, and it, it – that really comes from, I-- a friend of mine was Dean at the University of, law, law school and he asked me to teach ethics. And, I—I, when he first approached me, I said, “gosh, that course? I thought that was supposed to be taught by some old battle worn practitioner with gray hair who would tell scary stories to scare the kids straight.” And then he said, “have you looked in the mirror lately [audience laughter]?”
I, I, uh, we don’t have time for everything I'd love to say to the young people here, but the one thing I guess I’d asked them to remember, is, remember why you went to law school. Uhm, at the end of the semester, I'd always ask my, my kids to do the following corny exercise: spend five, 10 minutes in class writing your obituary. Now there’d be a snicker or two whenever I started this thing, but after five or 10 minutes the room was always deathly quiet. And then I'd ask them, a few brave souls, to read out what they’d written. And you know what they never wrote? They never wrote how rich they’d become and they certainly never wrote that they were proud that they'd be rainmakers at their law firms, or that they’d billed the most hours, or they brought in the most clients, or they had the biggest house or the fanciest car. They all wrote about the families. Being good in their families, being good to their friends and leaving the world maybe a little better or no worse off than they found it. And I’d say to the kids, “do me one favor, it’s the only thing I'm ever gonna ask of you: hold on to that piece of paper, stick it in your desk drawer at your office, and when you're feeling low or maybe a little cynical, pull that out and ask yourself how you doing on the metrics that really matter.”
[Podcast theme music begins]
Mark Updegrove: My thanks to Justice Neil Gorsuch, the Moody Foundation and St. David's HealthCare, and of course, to you for joining us. Subscribe to us on Apple Podcasts, Spotify, or wherever you listen to your podcasts.
I'm Mark Updegrove. See you next time.
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