A Republic, If You Can Keep It

Image of A Republic, If You Can Keep It
Release Date: 
September 10, 2019
Crown Forum
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A Republic, If You Can Keep It opens delightfully with a short autobiography flavored with stories, among them, tracing family history, savoring chicken curry, eluding reporters and cameras, fleeing the house surreptitiously with an Iranian neighbor, and greeting a would-be British wife flying to Denver. The author, Neil Gorsuch, raised in a family of lawyers, “with roots in the American West,” is a Trump-appointed Justice of the United States Supreme Court.

Most of the book is legal materials, primarily an assortment of case commentaries that few litigants would read to loosen up after a tough day at the courts. However, lawyers might and should. Fourteen chapters are titled after italicized case names, such as Gutierrez-Brizuela v. Lynch. A few chapters are commencement speeches, such as Ten Things to Do in Your First Ten Years after Graduation, delivered at law schools. The book is a compilation of somewhat disparate pieces with the author as the common thread.

The book ends quietly, with a short note of humility discounting illusions of acquiring everlasting fame, since most judges, says the author, including the ones with portraits mounted in prestigious courtrooms, disappear into anonymity. In the obituary, Gorsuch “would like to be remembered as . . . kind and mild in private life, dignified and firm in public life.”

A Republic, If You Can Keep It is built “to contribute to a revival of interest in the Constitution of the framers’ design and the judge’s role in it.” A fan of Justice Antonin Scalia, Gorsuch favors “originalism and textualism” as interpretive methodologies. Legal professionals know what these terms mean and that they are associated with judicial restraint, a conservative buzzword. Originalism and textualism, claims Gorsuch, have “blossomed” in legal circles and have distinguished themselves from the “weeds” (other interpretive methodologies). This claim is incorrect.

Regardless of the fleeting success of an interpretive model, it is a bit unsettling that a sitting Justice would advocate for the revival of any legal methods of judicial decision-making, let alone intensely controversial ones. There is no consensus in the legal profession, including the judiciary and academy, that originalism and textualism ought to be revitalized or even used on an exclusive basis.

In marketing his interpretation preferences, Gorsuch disregards his own lesson in the book, upholding what he calls “separated powers,” the constitutional doctrine of a tripartite government. The legal profession, too, is founded on “separated powers.” The job of advocacy is allocated to lawyers, not judges. Lawyers are permitted to interpret the Constitution and statutes with any credible legal methods, in the hope that judges are open to the meaning of legal texts and the meaning of meaning. In fact, Gorsuch himself draws this distinction during the confirmation hearing.

In studying comparative law, and Gorsuch has a Ph.D., we find that common law judges have earned much more public trust than have judges in conceptualistic legal traditions, because the former have been fluid and open. The age of statutes and the attendant interpretive infrastructure is relatively new. For centuries, common law judges have been meandering through waxy cases, focusing and defocusing facts, twisting and turning precedents. They use diametrically opposite cannons of construction to do the right thing. They still do. The common law interpretive flexibility (much like metabolic flexibility) is beneficial for the body of law.

Judges accoutered with obdurate interpretive methods do more harm to the Republic than what Gorsuch might call “wishy-washy” judges determined to do justice in cases before them. Let the jurists (law professors) squabble over the preeminence of one method than the other. For judges, case-sensitivity is a far more superior value than any sacrosanct method-rigidity. Professor Gorsuch was at liberty to foster originalism and textualism. Justice Gorsuch has no such responsibility.

Some conservative judges overstate the notion that “law is language” and fervently search the law’s meaning in original pamphlets and dictionaries when the “plain text” refuses to render meaning. They should ask a question why the scientists do not emphasize the language while studying the laws of thermodynamics, soil mechanics, or other sciences. For example, no one cares about the words in which Newton or Einstein articulated the laws of motion. Yet the laws they wrote in English or German are universally understood, applied, translated, and critiqued.

What is the matter with seeing legal texts as carriers of principles, policies, and purposes? Legal texts are important to the extent bottles are important for transporting liquids. The real thing is the content, not the container. The originalists and textualists are fixated with the bottles, fearing a spill. The fear of spill is sensible and yet it is the content that must be judged without deifying the container.

The purpose of this critique is not to discredit the author’s enchantment with originalism or textualism, but to argue against enshrining the supremacy of certain legal methods and throwing away the others as intellectually deficient.

Judges, particularly the Supreme Court Justices holding unfettered interpretive authority, and they know they do, must take ownership of legal outcomes they produce. The legal system cannot allow them to hide behind originalism, textualism, or any other legal method to deny personal responsibility when they decline citizenship to a community, allow deportation of settled families, or turn away asylum seekers.

The argument that “I personally don’t like it, but I’m compelled by law to do it” is unavailable to the Supreme Court Justices. If the founders wrote a racist legal text, do not follow them unless you agree with them. (I remember asking Justice Harry Blackmun if he distinguished between what law is and what law should be, his flat answer was “no.”) The judges must opt for existential authenticity, not dissociation paradigm.

A Republic, If You Can Keep It is by no means a book written to advance Federal Society ideology. There are invaluable tactical insights for lawyers who would write briefs and argue cases to win Justice Gorsuch to their causes. The lower court judges in syzygy with Justice Gorsuch will find reliable arguments to adopt originalism and textualism in their opinions. Law professors will find the book a good citation source for law review articles. Law students can learn Ten Things that Justice Gorsuch offers them. Even the general public might read the book to get an idea of how high court judges rationalize decision-making.

Neil Gorsuch is a sophisticated jurist and comes across as a good-hearted man, well-liked by the “Obama-appointed colleagues” at the Tenth Circuit. The book recalls fond memories of how people supported him during the confirmation process. One wrote: “I didn’t vote for the President who nominated you, but I’m praying for you and your family.” Hopefully, Justice Gorsuch will rethink some of his viewpoints to keep the Republic together.