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February 18, 2020 Appellate Issues | Winter 2020

Republic or Bust: Keynote, A Conversation Between Justice Neil Gorsuch and Judge John Sparks, Jr.

By Namosha Boykin and Kelechukwu Chidi Onyejekwe

It is easy to overlook the fact that judges are experts in the art of persuasion, but we often do.  They prefer to be viewed as umpires – neutral arbiters calling balls and strikes.  They do not readily call attention to their mastery of this skill.  But sometimes we, their audience, cannot help but notice.  During one of the most anticipated AJEI Summit traditions, a visit from a Supreme Court Justice, Justice Neil Gorsuch displayed his skill, persuading his audience one captivating anecdote after another, about life and the law according to Justice Neil Gorsuch. 

During this year’s summit in Washington, D.C., moderator Judge John E. Sparks, Jr., Judge of the Court of Appeals for the Armed Forces, kept the conversation moving, and the laughs flowing, as he ably engaged the Justice in a discussion about his life and his new book, A Republic, If You Can Keep It.

Judge Sparks began with an overview of Justice Gorsuch's personal and professional background. Born in Denver, Colorado, August 29, 1967, he and his wife, Louise, have two daughters. Justice Gorsuch is a fourth generation Coloradan and a third-generation attorney, following his father, mother, and grandfather. While the nation’s capital, Washington, D.C., is now his professional home, his heart and his wife’s remain firmly in the West.  But it is not the Justice’s career that brought him to Washington, D.C.  Rather, it is his mother, Anne Gorsuch, whose career ascension caused the family to leave the Justice’s beloved West.  When Justice Gorsuch was still a high school student, Mrs. Gorsuch became the first female administrator of the Environmental Protection Agency (“EPA”), causing the family to move to Washington, D.C. 

Neil Gorsuch held several prestigious, high ranking positions before his appointment to the Supreme Court of the United States.  He was a judge on the Colorado-based United States Court of Appeals for the Tenth Circuit, Principal Deputy Associate Attorney General at the United States Department of Justice, and a partner in a private law firm.  Justice Gorsuch was also a law clerk for Justices Byron White and Anthony Kennedy.  Judge Sparks noted that this makes Justice Gorsuch the only Supreme Court Justice to have served with a Justice for whom he previously clerked.  Justice Gorsuch received a B.A. from Columbia University, a J.D. from Harvard Law School, and a Doctor of Philosophy in Law from Oxford University.  

Life After the Nomination

Next, Judge Sparks guided Justice Gorsuch through a discussion of his transition from a “baby judge” when he first attended an AJEI Summit many years ago—making lifelong friends in the process—to his nomination and appointment to sit as a Justice of the Supreme Court.  It is like a “bolt of lightning out of the blue. How do you plan to become a judge? How do you plan to be a justice?” he pondered.  Justice Gorsuch, candidly at a loss for advice, found no adequate guidance for his audience on how to prepare for either.  One day he was sitting on the Tenth Circuit, a wonderful place, a very diverse court, collegiate and a wonderful group of people, in his own words.  He “was happy.”  The next day “the President decided to nominate me to the Supreme Court and life has changed.” 

And the changes in his life are many.  It is not merely having to sneak into the White House because the President wants to keep the nomination a secret.  And in case you are wondering how, exactly, one might sneak into the White House, apparently it is through the kitchen.  Even more profound is the complete loss of anonymity, starting from the “spectacle of the confirmation process.”  Those of us who are not in the public eye likely, to a certain degree, may or may not appreciate having anonymity.  But according to Justice Gorsuch, you do not realize what a gift anonymity truly is until you find yourself being filmed in a restaurant from across the room, inelegantly slurping noodles.  Worse still is when you later find your inelegant slurp session all over the internet!  While life in the public eye may take some getting used to, Justice Gorsuch appreciates the gift God gave him to counterbalance the loss of his former life.  That gift, received in exchange for his anonymity, is the realization that the American people love their country and the Constitution, and the realization that they want the Court and the Justices to succeed.   The ability to see this love, and the goodness of the American people every day is a gift he does not take for granted.  This gift helps him to remain hopeful for the Country in spite of the differences among the many people who make up our imperfect yet impressive union. 

Why Write the Book?

“The book grew out of the lovely confirmation process.”  The process, for better or for worse, has changed over the years in both the length of the confirmation hearings and the increasing acrimony of the process.  Justice Gorsuch’s first confirmation took fifteen minutes.  He recalls that Justice Byron White’s confirmation to the Supreme Court took about the same amount of time.  Justice Gorsuch also reminds us of the time when Justice Scalia smoked a pipe during his confirmation hearing.  But those are the confirmations of yesterday. 

The Justice’s most recent experience reveals that people do not understand what judges do or how they differ from politicians.  He bemoans the fact that judges are asked to commit in advance concerning how they would decide issues in the abstract – and their confirmation is made contingent upon that commitment.  “So many people believe that judges are politicians.”  This, Justice Gorsuch opines, is a consequence of declining civics education in the United States.  It is concerning that one-third of the country cannot name any branch of government, one-third can name two branches, and ten percent—yes, a full ten percent—believe that Judge Judy Sheindlin is a Justice of the Supreme Court of the United States.  For those not in the know, Judy Sheindlin is better known as Judge Judy, a television personality who rose to fame in the 1990s with the eponymous reality courtroom television show.  Naturally, Justice Gorsuch has concerns about civic education, civility, separation of powers, and the role of the judge in our republic.  The confirmation process focused his mind on these issues, resulting in the book.

Civics, Civility, and Civic Education are Necessary for The Republic

Sixty percent of United States citizens would fail the naturalization examination that Justice Gorsuch’s wife had to pass to become a citizen.  Thirty percent of millennials, he also observed, do not think that it is essential to live in a republic.  This raises the question of whether those persons truly understand what a republic is.  The Justice acknowledged that important work is being done by judges and Retired Justice Sandra Day O’Connor in terms of increasing civics education.  But that is not enough.  He believes that the civics once learned in school by “people of a certain age” amongst his audience should never have disappeared from the public-school curriculum.  A republic cannot stand with citizens that do not know the function and purposes of its institutions.  Paraphrasing Thomas Jefferson, Justice Gorsuch passionately lamented that if we expect ignorant people to rule themselves and be free, we are expecting something that has never happened in the history of this world and never will happen.  Self-governing people need to know not just their rights, but also the institutions designed to protect those rights, such as the branches of government.  Civics involves not just education but engagement.  The republic must keep a stream of well-informed and engaged citizenry.  Justice Gorsuch further reminds us that civility and decent behavior in public were taught at the time of George Washington.  The Jesuits published 110 Rules of Civility and Decent Behavior in Company and Conversation in 1595. Notably, Washington copied all of the rules by hand and learned them.

Those rules no doubt helped shape Washington in his work with Alexander Hamilton and Jefferson. “Republics are raucous places,” the Justice acknowledged.  The founding fathers are known to have used tumultuous and colorful language.  He reminds us that they called each other some great names and were the subject of caning and duels.  Our republic has been through some hard times.  But, “to succeed as a republic we have to be able to talk to one another, we have to be able to listen to one another, not just tolerate, but cherish one another, and recognize that people with whom we disagree love the country as much as we do.”  Reflecting, he shared the wisdom of his wife’s grandmother, who observed that one can have many regrets in life, we all do; but the one thing we never regret in life is being kind. Finding ways and places to teach these values is good for the country and good for the profession.  

Separation of Powers as Vital as The Bill of Rights

We all understand the Bill of Rights and how it serves us.  Everyone knows the right to free speech, especially parents of teenagers, Justice Gorsuch joked.  But there is less appreciation for the separation of powers.  Hamilton wrote the Bill of Rights—more or less under duress—because he believed that it was a set of promises and that promises are only as good as their enforcement mechanism.  Hamilton did not think it adequate to simply list promises in a bill of rights.  Rather, Gorsuch observed, the brilliance of Hamilton’s design was to put in the Constitution an enforcement mechanism: separating of powers among the three branches of government as a way to combat tyranny.  Checks and balances.  To show that a bill of rights without meaningful enforcement is useless, Justice Gorsuch pointed to bills of rights that he believes include even greater rights than ours, for example that of North Korea.  Simply put, North Korea’s bill of rights “promises everything.”  It includes the right to an education, to health care and even to relaxation.  But at the end of the day those rights are not worth the paper they are written on because all power is reduced to one man’s hand.

Justice Gorsuch cautions against such concentrations of power no matter where they may lie.  Understanding the Constitution means understanding that judges are not in place to write the law.  By design, it is supposed to be extremely difficult to legislate.  This design serves to protect minority rights.  When the lawmaking responsibilities are removed from the legislative branch serious problems arise.  Have we elected a king for four years?  What happens to transparency?  What about the involvement of the people in the process?  In these cases, minority rights suffer.  Likewise, the rights of minorities, immigrants, and veterans are endangered when independent judges are replaced by executive agents.  When separation of powers is violated, he cautioned, we see rights adjudicated in ways that you and I would not recognize as fair and independent.  For Justice Gorsuch, this cannot be what the founders of this republic intended. 

Originalism and Textualism Are Key

Justice Gorsuch is a self-proclaimed originalist and textualist.  He explained that originalism applies to Constitutional interpretation while textualism applies to statutory interpretation.  But, he emphasized, it is okay to disagree on these things.  The Constitution must be interpreted in our time the same way that an ordinary person bound by the law would have understood it at the time it was written.  “Is it hard to apply? Yes. Is it always determinate? No.”  The Justice acknowledges that “originalism has really bad p.r.”  Critics of originalism prefer a “living constitution,” interpreted according to contemporary circumstances, not one frozen in an earlier century.  “Who wants a dead constitution?”  No one.  But the founding fathers rejected the idea of an unwritten, judge-made constitution.  The founders of our republic were very familiar with an unwritten constitution because the United Kingdom has one, a judge-made constitution written one decision at a time.  The founders rejected this in favor of the relative certainty of a written constitution. Subsequent Amendments to our Constitution show, he noted, that originalists respect the Constitution as enacted and that the founding fathers chose not to rely upon the courts to create constitutional rights.

Justice Gorsuch continues, explaining that textualism honors the product of the legislature.  In the United States Congress, whatever survives bicameralism and presentment is the law. Legislative history, important as it may be, is not the law.  Every Court agrees that the starting point for understanding a statute is the language of the statute, why is the Constitution different, he asked. 

Two cases exemplify the danger in not following the clear language of the Constitution.  In Ohio v. Roberts, the Court invented a Confrontation Clause balancing test involving “competing interests” and “indicia of reliability.” But the Sixth Amendment’s Confrontation Clause clearly guarantees a criminal defendant the right to “confront[]…the witnesses against him.”  The Court’s disregard of the language of the Constitution caused defendants across the United States to lose their lives or liberties without defendants being able to challenge the key piece of evidence against them.  In Crawford v. Washington, the Court corrected itself and protected the Constitution.  But the Dred Scott decision ended in a different fashion.  A majority of the Court departed from originalist principles and found a substantive due process right to own slaves in United States territories.  Accordingly, the Court held that Congress had no power to outlaw slavery in the territories.  But the Territorial Clause of the Constitution (Article IV, § 3, Cl.2) empowers Congress “to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States.”  Justice Gorsuch has no doubt that the Court was doing what it thought best for the Country, in this case trying to avert the Civil War.  But in the end, Dred Scott contributed to the outbreak of the Civil War.

Both Roberts and Dred Scott emphasize that the rule of law must be paramount in any constitutional interpretation.  Justice Gorsuch is not swayed by critiques of those motivated by purpose, or by the desire to avoid negative, oft unintended, consequences.  Both critiques, he finds, “are equally at odds with the rule of law.”  When a judge engages in “purposivism,” overlooking the clear language of a statute because the judge sees another “purpose”—no matter how noble—that judge disregards carefully considered compromises made by the legislature and robs political minorities of their bargains under the Constitution.  The judge is equally flawed who engages in “consequentialism,” departing from a statute’s clear language because of the terrible “consequence” that really bad people will get out of jail.  Yet Justice Gorsuch includes “very dear friends” among both groups.  This is one of the Justice’s many important examples demonstrating that citizens can disagree about these things and still be friends and coworkers.  Yet the question remains concerning how to correct the flawed logic of such very dear friends.  “To this I say, change the law! I do not know who is right about the consequences, I have not taken evidence. But I know how to read a sentence,” offered Justice Gorsuch.  The solution is for lawmakers to write better laws, not to have more laws made by judges.

Lawyers and Judges Must Work to Achieve Justice for All

There are problems with the system hindering justice for all.  The prosecutor has the ability to pick his defendants and not the crime.  What can we do?  On the civil side, people cannot afford to take cases to court.  We have trial lawyers without trials.  We do not allow non-legal professionals to provide legal services.  What have we done?  For instance, why do we need three years of post-graduate education to be a lawyer?  The only reason is that the ABA says so — there appears to be no other reason.  This makes legal education and legal services expensive, and it may be necessary to relax these requirements.  These are some of the many issues Justice Gorsuch identified where lawyers and judges must act to make our profession better.

Despite the many criticisms, for him, this is still the best legal system in the world.  Excluding traffic and parking tickets, approximately 50 million lawsuits are filed in the United States annually.  In the federal system, 95 per cent are resolved at the trial level without an appeal.  Sometimes people are happy just to be heard and acknowledged.  What happens to the five percent that are appealed?  Those appeals are mostly resolved unanimously.

The United States Supreme Court hears 70 cases a year out of those 50 million that are filed.  The Court decides 40 percent of its cases unanimously.  There are 5-4 decisions 25 per cent of the time.  This has been more or less the same since 1945.  There were only seven 5-4 decision last year.  Justice Gorsuch sees this as a testament to the rule of law.  It is also a testament to the fact that the hope that frames the future of our justice system is well-founded. 

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Namosha Boykin

Namosha Boykin is the Founder and Managing Attorney of The Boykin Law Firm.  She may be reached via email at [email protected]

Kelechukwu Chidi Onyejekwe

Kelechukwu Chidi Onyejekwe is the Appellate Public Defender at the Office of the Territorial Public Defender, United States Virgin Islands.