Justice Gorsuch Addresses NCBJ

Bankruptcy Judge Michael Romero had a fireside chat with Supreme Court Associate Justice Neil Gorsuch about his role on the Court and his new book, The Republic If You Can Keep It.   If it looks like they are speaking from the pit of Hell, it is because there was a giant video fireplace behind them.

Judge Romero started by reminding Justice Gorsuch about the quiet and happy life he left behind in Denver when they had  courthouses across the street from each other.

The Big Announcement

Justice Gorsuch told the story of how he had to evade the press for President Trump's rollout of his nominated.  He said that the President "likes a surprise.   He  wanted us to sneak out of Colorado and sneak into the white house.  How do you sneak into the White House when the entire Washington press corps knows there is going to be an announcement?"  The answer was through the kitchen.

However, the more interesting story was how he slipped the press who had been staking out his neighborhood.   He said that two men dressed in suits showed up to his home.  The first thing they did was to send them to Walmart to get some clothes that didn’t like Washington lawyers.  They suggested that the Justice-to-be and his wife hike up the trailhead where they could meet them with an SUV.  Even though it was only a mile, then-Judge Gorsuch said that he was not about to pull his wife's rollerbag up the trail.  Instead, he went to his neighbor for help.   His neighbor told him that he could drive out a horse trail.   His neighbor grew up in Iran during the revolution and made sure that he would never buy a house with only one way out.

Judge Gorsuch was given the Lincoln bedroom as an office for the day.  His wife, who is from England, was allowed use of the Queen’s bedroom.   She was only allowed one phone call so she called her father in England.  Her father insisted that the President had already decided to pick someone else.

On Being a Supreme Court Justice

Justice Gorsuch said there was a period when he mourned his loss of anonymity but said that it has given me the opportunity to witness first hand how much the American people love their courts and love their Constitution and want us to succeed at what we do.    

Ruth Bader Ginsberg is a legal rock star.  Justice Gorsuch, on the other hand, sometimes gets recognized when he goes to the movies or answers the door for trick or treaters.   Speaking of which, my impression of Justice Gorsuch in person was much different than what I expected.   He is tall and fit and carries the presence of a silver-haired statesman.

He said that during his confirmation, there were "things that concerned me and things that encouraged me."  He described a "complete lack of understanding of what we do" and that the court is seen as "politicians with robes."   He told of being asked, will you promise to rule this way or rule against this way.  He said he became concerned that we are losing sight of separation of powers and why that’s important and losing our ability to speak with each other.

Justice Gorsuch Wrote a Book

He spent most of the remainder of his talk on his new book, The Republic If You Can Keep It which takes its name from a Ben Franklin quote.   He said that we all have a role to play in keeping our Republic.  He quoted Thomas Jefferson who said, "if a nation expects to be ignorant and free, in a state of civilisation, it expects what never was and never will be."  He lamented the fact that 10% of the population thinks Judge Judy serves on the Supreme Court but 75% of the American people know the three stooges.  He said we have a problem when only about 30% of millennials believe that it’s important to live in a democracy.   

He commended Icivics, a program started by Justice O'Connor and continued by Justice Sotomayor.   You can find out more about it here.   ICivics uses computer games to teach students about civics and produce a more informed future electorate.  If you believe there is a civics crisis, a civility crisis, if not you who, if not now, when?

Separation of Powers

Next, she spoke about separation of powers.   He said that the Bill of Rights contributes to our liberties, such as speech and privacy.   Separation of powers seems dusty and maybe it should wear a wig. He said that he has read many bills of rights and that his favorite is from North Korea. It’s excellent.  It even includes a right to relaxation.  Those bills of rights don’t mean anything because all power resides in one set of hands and this was Madison’s great insight.  Separation of powers is what keeps us free.   I think it’s brilliant and we sometimes forget at our peril.

He said there are problems when judges try to legislate. What if you allow the political branches to judge cases? Who would want that? We have long tenures so that we don’t care (about external pressures). We can defend everyone’s rights. It’s a very difficult function.

Madison considered the law making branch to be the most dangerous one. That is why he broke it into parts from different constituencies. Madison would have preferred that you need a supermajority to make laws.

Red Shirts and Blue Shirts (and we're not talking about the security officers on Star Trek)

Justice Gorsuch complained that people talk about the courts as if we’re red shirts and blue shirts.  That's not what I see.  I see the rule of law in practice, which is so remarkable.  Here are a few facts.  Every year in our country there are 50 million lawsuits filed.   We're a litigious bunch.  Out of that 50 million, 95% in the federal system are resolved by the trial judges without appeal.   Clients may be unhappy at the end of a trial feel that they were heard, that they had their day in court.
  

When I was on the 10^th Circuit covering 20% of Continental U.S. I sat with a colleague appointed a year after I was born.  There were judges appointed by Obama to LBJ.    When we sat in panels of three of us, we were  95% unanimous.  That’s the rule of law in our country.  Looking at the Supreme Court is going from the forest to the tree.  They take 70 cases a year.  I have friends who hear 70 cases before lunch.  We only take the really big disagreements.   There are nine of us appointed by five different presidents over 25 years.  We reach unanimous agreement about 40% of the time.   That happens through collegiality, civility, respect, and hard work.  What about the 5-4 decisions?  Those are about 25-30% of the cases,  about 19 cases.   There were ten different combinations of judges in 5-4 justices.  Only seven cases were what you think.  The numbers have been stable since 1945.   The only thing that’s changed is that nothing has changed.   We have good faith reasoned disagreements over how to read the statutes.   Steve Breyer comes into my office.  We have a case about the 1938 Railroad Retirement Tax Act.  What is the meaning of money or compensation?  He said it’s to get at indirect compensation.  I disagreed.   I told him I was going to write the best opinion ever on originalism and Justice Breyer would write the best opinion ever about purposivism.  Breyer responded that no one would ever read either of their opinions.

Reading the Constitution

Textualism, purposivism, and originalism are all ways to read a staute or the Constitution.   We can disagree on things like this without being disagreeable.   We can disagree about vital things and respect that the other person loves this country as much as you do. 

He said he doesn’t like the term originalism because it conjures up images of old white men and the Constitution. He said his philosophy is to defend the meaning of the whole Constitution. The 13th-15th and 19th amendments are a second constitution, extending the Constitution to all people. I take those amendments no less seriously than Constitution as originally written. You should look at what authors meant, what someone who read it at the time would have thought. An example is the original meaning of Shakespeare. Usage has changed over time so you try to understand how Shakespeare and his audience would have understood it. That‘s what originalism means, how the people who would have adopted statutes meant them. What did the public understand words to mean at the time they were adopted. For a judge to change words is to move out of judicial function and into the legislative function. We had the first written constitution in the world. We rejected an unwritten constitution like they had in England. What they wrote down, they cared deeply about.

You look at meaning of words, but the application of words can change. Need a warrant to search a home. Is a search only Red Coats ransacking your home or can it be thermal imaging viewing your home. The words in the Fourth amendment don’t change but their application does. Papers and effects can be understood to include emails.

A good originalist will follow the Consttuition wherever it leads.   That’s my pitch.   Some of my nearest and dearest friends disagree with me and we debate it over dinner and drinks. 

Access to Justice 

Then he turned to access to justice.  We get to govern ourselves.   The current status on the civil side is the rise of pro se litigation.   As much as we need to help pro se litigants its not forms or a kiosk in the courthouse that they need but a lawyer.   We have come to criminalize everything that walks and talks.  There are 4,500 federal criminal statutes.   There are administrative regulations with criminal penalties.  They stopped counting in 1990s when there were over 300,000 back then.   We have some cleaning up to do.   If you don’t have written law, you don’t know what to expect. If you have too many laws, you can’t keep up with the paper blizzard and you don't know what to expect.  

He asked the judges in the room, how are we doing with our rules?   No trials and endless discovery.  You have trial lawyers who have never tried a case but can write interrogatories in iambic pentameter.   Litigants can’t afford to get to trial.  We need to get cases to trial expeditiously.   On the academic side, do you really need three years of post graduate education to be a lawyer?  In England, you can become a lawyer with three years of undergraduate education.  Education has become so expensive they new lawyers can’t afford to service mainstreet clients.   To lawyers, do we really need three years to get a JD lawyer who knows little about an area or could you use nonlegal professionals trained by lawyers doing some of that more cheaply.   I can go into Walmart and get my eyes examined and taxes prepared but can’t see a lawyer. 

Author's Note:  Today I read that the ABA had rated two of President Trump's district court nominees to be unqualified because they had never tried a case or taken a deposition.   I think that proves Justice Gorsuch's point even if it critiques the President who appointed him.  One of the things that I like about bankruptcy court is the fact that we routinely have evidentiary hearings which constitute mini-trials.  We have a system where it is possible to get to trial and I don't know anyone who writes interrogatories in iambic pentameter.