February 26, 2021

Neil Gorsuch

Justice Neil Gorsuch, the first of President Trump’s three nominees to the Supreme Court, discusses his judicial philosophy, the legacy of Justice Ruth Bader Ginsburg and the breakdown of civility in America.

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He’s an associate justice on the United States Supreme Court.
This week on ‘Firing Line.’

He is the man of our country, and a man who our country really needs.

Justice Neil Gorsuch holds the seat that belonged to conservative legal giant Antonin Scalia, a man he deeply admired.

Justice Scalia was a lion of the law.

Gorsuch, from Denver, Colorado, was the first of President Trump’s three Supreme Court nominees to be confirmed.
[ Applause ] I visited Justice Gorsuch at the Supreme Court…
The breakdown, when it came up here, was five to four.

…just two weeks after Justice Ruth Bader Ginsburg’s passing, a few weeks before the election.
Gorsuch was clear, he wouldn’t talk politics or comment on recent cases or those that might come before the court.
But he did reflect on what it was like to work alongside liberal icon Justice Ginsburg and what he fears poses a threat to our republic.
In a rare interview, Justice Neil Gorsuch.

‘Firing Line with Margaret Hoover’ is made possible in part by… Corporate funding is provided by… ♪♪
Justice Gorsuch, welcome to ‘Firing Line.’

It’s my pleasure to be here.
The nation is still mourning the passing of Ruth Bader Ginsburg.
How do you remember her legacy?

Well, as a father of two daughters, my first thought is trailblazer.
Ruth was one of the strongest people I have ever met.
She faced adversity with grit and determination and always with hope.
And watching her life story unfold is an inspiration.
And I know it’s going to be an inspiration for generations to come.
It’s a tremendous loss we’ve suffered here.
There’s an empty chair and an emptiness in — in our lives, as friends and colleagues.

Are there any private traditions or ways that the justices honor one another?

Yes, um, there are.
I want to share happy ones.
We sing ‘Happy Birthday’ to one another, every birthday.
We spend a lot of time having fun together, too, in ways that honor one another, I think.
For 150 years, every time justices have gathered, it’s a tradition that we always shake everyone’s hand, no exceptions, no matter how people are feeling.

What will be the preferred COVID greeting?
It’s the elbow bump.

I think we’ve moved on to that.

Look, you have a unique résumé. You are one of eight former Supreme Court law clerks to sit on the highest court as a justice.
And you are the first justice to serve beside someone for whom you clerked.
What was it like when you — the announcement was made on January 31, 2017?

Oh, wow.
[ Sighing ] Uh… I was sitting in the Lincoln Bedroom, having been flown out from Colorado, our home state, and we were allowed a couple of calls right before the event.
Mine was to Justice Kennedy, for whom I clerked.
And we were both just choked up with a lot of emotion that night.
Louise was allowed to call her father in England, and she told him that we were about to go downstairs to the East Room.
And he said, ‘Honey, no, I’ve been watching the TV, and there’s another guy.
I’m sorry, but it’s not going to be Neil.’
And Louise said, ‘Dad, I’m pretty sure.
I’m sitting in the Lincoln Bedroom.
It’s going to be Neil.’
And her father said, ‘Yeah, but, you know, President Trump.
I’ll bet, by now, the other guy’s down the hall.’
So, parents-in-law are not always — they keep you grounded, don’t they?

Justice, many people think of the Supreme Court as a hotbed of dispute, but 40% of the cases in a given term are decided unanimously.
There was an opinion this spring, Ramos vs. Louisiana, in which you were joined by two justices that many people consider liberal — Breyer and Ginsburg.
But then Justice Alito, who most people consider quite conservative, dissented and was joined by Justice Kagan, who people consider quite liberal.
Can you give us insight into this alignment?

Yeah, I’d love to, Margaret.
I really appreciate that opportunity, because it isn’t what people portray or talk about a lot these days, but it’s the reality.
Day in and day out, In cases like Ramos, justices align in ways you would not ‘expect.’
Justice Ginsburg and I were sometimes the lone dissenters in cases together.

You and Justice Ginsburg agreed 62% of the time.

Is that right?
That doesn’t surprise me.
And Ramos involved a right to a jury.
Are you entitled to a jury for certain crimes?
And that doesn’t always divide along the lines of liberal or conservative.
So, can I share some numbers with you, some statistics?

Please.
I mean, I think this is quite useful for the public to understand that — because we think of justices in purely political terms, too often, I think.

Yes, you do.

Is there something you can shed light on how it works, when you come to a decision with people who people think that you would not agree?

A liberal democracy is a miracle, Daniel Webster taught us.
It took 6,000 years of human history to achieve a system of government in which the people could rule themselves and do so without devolving into mob rule.
It’s a miracle we take for granted, like the technology around us.
One thing about a pandemic is it sometimes makes you appreciate some of the miracles of daily life.
And I think the rule of law in this country is one of those miracles.
And here’s some numbers that I think help understand the miracle we enjoy.
Every year in this country, Americans file 50 million lawsuits.
Out of those 50 million, 95% of them are resolved in the trial court before a jury and a judge and never appealed.
Now, I was a trial lawyer, and I can tell you, I had clients who lost.
Sometimes they thought the jury got it wrong, the judge got it wrong, but they respected the process.
They had an opportunity to be heard.
They felt heard.
They felt like they had due process of law.
Okay, people say, ‘Fine, you’re talking about all those lower-court cases.
They do a good job.
But your court, I don’t know.
Let’s talk about the Supreme Court.’
And I say, ‘Fine.
This court takes 70 cases a year.
This court only hears cases where there’s disagreement in the lower courts.
Out of those 70 cases every year, 40% of them, we resolve unanimously.
That doesn’t happen by magic.
Ask nine people where they want to go to lunch.
See if you get some disagreement.
Bet you will.
It’s incredible what we’re able to achieve.
‘Fine,’ they say, ‘what about all those 5-4s?’
Okay, 5-4 cases constitute about 25% to 33% of our docket.
Here’s a final point on this.
Those numbers have been the same since 1945.
Back then, Franklin Delano Roosevelt had appointed eight of the nine justices of the Supreme Court.
And if we’re doing as well, with nine justices appointed by five different presidents over the course of 25 years, as they were then, I think it’s incredible testament to the power of the rule of law in this country.
It really is a miracle.

In your book, ‘A Republic, If You Can Keep It,’ you spend some time meditating on the separation of powers.

Yes.

And William F. Buckley Jr., on this program in 1975, delved into that specific issue with Governor Jerry Brown, where he talked about the role of Congress and the Supreme Court.
Let’s take a listen.

The Supreme Court is not a legislative body, as the Supreme Court itself told us, for a period of a century that some problems are legislative and political in character; others are judicial.

To try to define with simplicity the difference between legislative and judicial isn’t really possible.
We have a growing body of precedent, very much in the tradition of the common law, that goes from decision to decision.
If a clear principle emerges, then it’s time enough to codify these things.

What you heard there is you heard William F. Buckley Jr.
saying the Supreme Court’s job is not to legislate.
And you heard Governor Jerry Brown making the counterpoint.
Why, Justice Gorsuch, in your view, is Buckley correct?

Well, I think we ought to back up a little bit and talk about the separation of powers and maybe why it matters.
And I think a lot of people have difficulty understanding that today, and nobody’s teaching it anymore.
And that’s not to say we shouldn’t teach the good, the bad, and the ugly.
But we should teach it all, because if people don’t know their system of government, how can they possibly run it?
Apparently, only a third of Americans today can name the three branches of government, let alone why we have three branches of government and how they protect individual liberty.
James Madison, who wrote the Constitution, who wrote the Bill of Rights, he didn’t even want to write the Bill of Rights.
He didn’t think it was necessary.
He said, ‘I can write these promises down on paper — freedom of speech.
Those are all good things.
But if we don’t get the structure of government right, those promises are going to be worth the paper they’re written on.’
And — And I think he’s right.
Madison was right then, and I think he’s even more right now.
As we look around the world, Margaret, you can see many countries that have mimicked our Bill of Rights.
Every Communist country in the world has got a wonderful bill of rights.
I mean, if you really ask me, I’ve studied — I’ve looked at this, and if you ask me my favorite, I’d have to go with North Korea’s.
It’s really good.
Everything in ours, plus you have a right to free education, free medical care, and even a right to relaxation.
But what good are those rights?
If the power all resides in one person’s hands, then those rights don’t mean very much.
It’s the separation of powers that keeps us free.

So, then, in the context of the separation of powers, why is Buckley right, and Jerry Brown is wrong?
Why is it not the Supreme Court’s job to legislate?

Okay, well, with all due respect to my judicial colleagues, nobody elected us.
We are not representative of the people.
We’re not answerable to the people.
We’re perfectly suited for the job of interpreting the law, holding trials, deciding facts.
That’s what the judiciary is really good at.
Writing laws to govern 330 million Americans across a continental nation, it’s not what we were designed to do.
You would never give that job.
Who would design a Constitution that gives that job to nine old — I can say that now — people sitting in Washington?

You’re the youngest among them.

Well, nobody would write such a Constitution, Margaret.
Nobody.
And the Constitution gives the power to write new laws to the people’s representatives, who are accountable to the people, so that they can make those laws, change those laws, and compromise.
Okay?

There are tools that you write about, the judges have at their disposal to understand the law and to interpret the law.
Originalism and textualism are two that many people hear in the headlines, but don’t fully understand what they mean.
As I understand from your book, ‘A Republic, If You Can Keep It,’ originalism deals with the intent of the Founders in the meaning of the Constitution, and textualism deals with the words in statute.
Did I get it right?

Pretty good.
I give you A-minus, Margaret.

How would you — How would you improve?

So, I’d say they’re really two things of the same idea.
One talks about the Constitution; the other, statutes.
They’re labels that have been chosen really by opponents.
Opponents of originalism call it ‘originalism.’
I call it just the enduring Constitution, and treating law the way we’ve always treated legal documents.
So, whether it’s the Constitution or a statute, how should a judge go about interpreting it?
And they’re really two competing schools of thought.
One is, you should follow the original meaning — the original public meaning of that document.
What was it understood to mean when it was written?
The words on the page.
You can call it literalism, you can call it textualism, you can call whatever pejorative you want to use.
I don’t care.
The other is, they like to call it living constitutionalism — and I think Governor Brown was alluding to this in the quote — that judges should just kind of evolve the document with a respectful attendance to its terms, but not limited to them, and just kind of improve it.
It’s a living Constitution.
It evolves, it breathes.
I don’t know how.
It’s law. It’s written words.
And so those are the two basic competing schools of thought.

Let me show you a clip from Justice Scalia.

Sure.

What he says about textualism.

People ask me, ‘Why — When did you become a textual?
What caused you to become a textualist?’
You know, it was, ‘When did you begin eating human beings?’
You know, it’s… [ Laughter ] It’s always some weird thing.
You know, I — I mean, ‘When did you begin to become a textualist?
You have a text.
You should read the text.
I…’ [ Laughter ] [ Applause ]
And just a few years ago, Justice Kagan had this to say about textualism.

You know, there’s that classic phrase that we’re all realists now.
Well, I think we’re all textualists now, in a way that just, you know, was not remotely true when Justice Scalia joined the bench.

Yeah, that’s true.

So, are we all textualists now?
Is the — Is that overstated by Justice Kagan?

I think, Elena — Justice Kagan — is absolutely right that compared to when she and I were going through law school, the field has been routed, and that judges across the country and any spectrum you wish to choose would agree that the starting place for interpreting statutes is with their words and their ordinary meaning.
Why?
Because you, the person reading the law and charged with violating it, may be sent to prison on the basis of it.
Your liberty, your rights should be denied only if you had fair notice.
And fair notice means the words on the page, not what’s in the heart of the legislature and not what the hopes of the judge may be.

So, I mean, that’s the contrarian’s view — right? — that judges must and should consult their own moral convictions when resolving hard cases.

Let me tell you what happens when we have judges evolving the Constitution.
The first time this court radically departed from the original meaning of the Constitution was in Dred Scott, recognizing a right to own another person.
And they read that into the Due Process — Due Process Clause of the Constitution — a substantive right to own a slave.
It isn’t there — nowhere in the text.
This is exactly what happens when judges become legislators.
They’re bad at it. Okay?
Dred Scott remains one of the darkest stains on the history of the United States Supreme Court.
So, do I trust my moral compass, or should I trust the compass of the Constitution?
You tell me.

Justice Scalia said, ‘If you’re going to be a good and faithful judge, you have to resign yourself to the fact that you are not always going to like the conclusions you reach.
If you like them all the time, you’re probably doing something wrong.’

You’re doing something wrong.
The question asked of me is, ‘What does the law say?
And can I apply it fairly here?’
And that is the obligation I owe parties before me.
They’re not asking me whether I think the law is wise.
They’re asking me, ‘What does it mean?’

So, to play devil’s advocate, what do you say to the critic who says originalism guides the law with the dead hand of the past?

Oh! The dead hand!
Oh, I hear that all the time.
And it’s a terrible phrase.
And compared to a living constitutionalist — right? — that sounds good, right?
Who doesn’t like a liv– I mean, better alive.

Take that one, too.
You know, what if somebody told you, ‘No, our Constitution is a living, breathing document’?
I say it’s an Constitution.
You don’t want me changing it.
You want it to endure.
You want your rights to be the same as they were yesterday.
You want them today and for your children tomorrow.
And with respect to the dead hand, what a silly critique, Margaret.
Alright?
The law shouldn’t be respected because it’s old.
Where does that leave the Ten Commandments, Margaret?
Alright?
And if you don’t like the Constitution because it’s too old and dead, you don’t like Marbury vs. Madison, then maybe we should throw out that precedent.
The dead hand?
Well, the dead hand also wrote the Civil Rights Act of 1964.
All law is dead, if you want to call it that.
All law is written by people who came before us.
And if we believe that we’re really a republic, a self-governing republic, then we own that law and the right to change it or not.
And that’s our decision to make as ‘we, the people.’

The critics would say, you know, ‘What could the Founders have possibly understood about modern technology — about cellphones, for example?
But you give an example of an originalist application of the Fourth Amendment — the amendment that protects against search and seizure — in the context of cellphone data.

Sure.

Can you explain, how did the Founders know to protect cellphone data?

Yeah, this is — this is the same sort of thing — dead hand.
What could they possibly know about our circumstances?
And I’ll say, it’s true, of course.
Thomas Jefferson did not know of cellphones, but what he did know of was an individual’s personal right to privacy trumping governmental interests, trumping the collective.
And they wrote something down.
They said something about it.
It’s called the Fourth Amendment.
And you have a right to be secure in your person, your papers, and your effects.
And it doesn’t take much imagination or creativity or leaps of moral logic or a living Constitution for a judge to recognize that the right to be secure in your papers, your person, your effects includes your cellphone.
And I’ve so held, and it’s originalist opinion, through and through.

The title of your book, ‘A Republic, If You Can Keep It,’ cites Benjamin Franklin’s quip.
But what you lament, Your Honor, is that there’s a real risk of a citizenry that doesn’t have a full and robust understanding of our history, of the separation of powers, and of our founding documents.
Do you have a thought on how, as an informed populace, we can confront that?

Well, the first thing we have to do is teach — teach our civic republican history and learn some of the things that we’ve been talking about, again, as a people.
Jefferson said that if you want an ignorant people to be free, you want something that has never happened in the history of the world and never will.
And I believe that.
And I believe it’s real risk when we stop teaching American history, American civics in high school and when we’re too embarrassed to talk about it in college.
Again, that’s not to say we should ignore the tough conversations about our history.
But to cancel it altogether risks our ability, as a people, to understand the past, to avoid the mistakes of the past, and to govern ourselves in the future.
And if there’s one thing that worries me the most, it’s that in the process of no longer studying American history, we’re also no longer studying civility, modesty, kindness — the virtues that allow us, as a republican society, to get along and to live with one another, because the beauty of a society that lives under the rule of law and respects the individual is that I get to do what I want.
I get to live my life.
But for that to work, I have to respect, you may see things very differently and that you have an equal right to live the life you wish to live and that you might have something to teach me, too.
And the ability to talk and to listen is the key ingredient of a republican form of government, to me.
And I am worried that we’re losing the art of listening.
We’re good at talking, but I’m not sure we listen much as we should.

So you write in the book — this is a quote from your book — ‘The promise of equal treatment under the law may be the most radical promise of all of our laws — or in the history of law.’
Explain what you mean.

To say that each person is your equal is a radical thing, no matter their condition, their upbringing, their race, religion, creed, whatever.
That took 6,000 years for us to come to that conclusion.
It took us a civil war to write those words into law.
It’s an incredible promise, and it’s not totally fulfilled.
It’s an aspiration, still.
But what a beautiful thing, and what duties it imposes on us, if you really believe it.
It does mean we need to listen to one another and respect one another, not just demand respect, not just demand that others listen to us.
And it’s a recognition that we’re all in this together — this fragile, fragile republic.
Republics don’t last long in the history of the world.
There have only been a few, spinning around the sun, at millions of miles an hour, in this precious place we call Earth and this precious time where people are so gifted materially.
To make the promise that we’re all equal, and to try and live it, it’s a miraculous thing.

‘It’s a Republic, If You Can Keep It.’

If we can keep it.

Justice Gorsuch, thank you very much for your time on ‘Firing Line.’

Margaret, it’s my pleasure.

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