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Three Cheers (Very Nearly) for Justice Neil M. Gorsuch

When Richard Reinsch asked me to review Justice Neil M. Gorsuch’s recent book, A Republic, If You Can Keep It, I entertained some doubts: I suspected that I might like it, but know full well that I have never written and probably cannot write in a gentle key. To borrow one of William F. Buckley’s lines: Sarcasm—snark—isn’t my preferred mode of discourse, it’s my only mode of discourse, one wholly unsuited to this occasion. But let’s see if we can make this work.

With the generously acknowledged assistance of two law clerks, Justice Gorsuch has collected some of his speeches, excerpts from law review articles, and extracts from some of his written opinions, all edited for length and stripped of footnotes and other distractions. The Justice complements and rounds out the collection with anecdotes and reflections on his family background; his beloved West; colleagues, friends, mentors, and role models; and life-shaping moments, including his nomination and appointment to the U.S. Supreme Court.

An overused aphorism for a title; snippets and war stories: that cannot work, you’d think. But it does work, splendidly. Justice Gorsuch makes good on his choice of the title (see below). The essay and opinion excerpts hold together and often convey insights in a way that is not easily replicable in a more conventional format. And the author has a point to make (several excellent points, in fact). This isn’t a vanity project; it’s a serious work of civic education.

“My hope,” Justice Gorsuch writes, “is to contribute to a revival of interest in the Constitution of the framers’ design and the judge’s role in it.” That project, the author makes clear, is intimately connected to the hope of helping to restore civility: mutual respect and simple good manners in our private lives and in our public life. I’m guessing that the civility concern is more urgent to Justice Gorsuch than are the civics. (It is to me. If a better understanding of, say, Madison’s Convention Notes were mobilized mostly by brutes, demagogues, and shills; or if we put textualism in the hands of those characters, we might be worse off.) You can’t run a decent, free society without civility and good manners, Justice Gorsuch insists; and no society is more in need of those things than a democratic, egalitarian society. The book title makes this Tocquevillean point: Justice Gorsuch not only explains it well, he also emphasizes its lineage. Good of him to see it, and better yet to drive it home.

Although the Justice never quite says so directly, the civics-and-civility nexus bears with special force on the contemporary screaming over the law and the courts. Incessant agitation over “Obama judges” and “Trump judges” and “politicians in robes”; brutal personal attacks on individual judges and justices: the demagogy is corrosive of both civics and civility. Justice Gorsuch resists it with all his heart, soul, and mind. So motivated, he delivers potent arguments against the demagogues across the political spectrum.

The empirics, he observes, are overwhelmingly against the view that law is all politics. Only a vanishingly small number of disputes end up in (federal) court. A far smaller number end up in appellate courts. 95 percent of those hard cases are decided unanimously by three-judge panels. The Supreme Court selects cases of disagreement among circuits; and even those exercises of judicial review mostly produce near-unanimous rulings and, occasionally, funky judicial coalitions. “The amount of indeterminacy in the law is often exaggerated,” Justice Gorsuch notes. It’s an awful error to mistake the miniscule set of “partisan” Supreme Court cases for the legal universe, or even the judicial universe.

That hugely important point is rarely acknowledged. Ronald Dworkin constructed law’s entire “Empire” from the vantage of “hard cases,” the better to have “Herculean” judges run the planet into ruin. (Justice Gorsuch credibly avers that he has never met a judicial Hercules. “There is a reason,” he writes in a characteristically funny aside, “why we wear loose-fitting robes.”) “Attitudinalist” political scientists run phony tests over garbage data to uncover judges’ hidden political biases. Law profs teach hard cases with an air of cynicism. The Supreme Court commentariat zeroes in on a handful of 5-4 cases, and advocacy organizations use them to feed partisan passions and to mobilize the rabble. Justice Gorsuch is up against a lot in his insistence on viewing law from the vantage of its normal operation. For just that reason, it’s good to see the judicial power of the United States entrusted to a judge who gets the point.

The core of the book is formed by four chapters on the Constitution and separated powers; originalism and textualism; “the art of judging” (it requires judicial humility and is roughly the opposite of what Judge Richard Posner used to practice, Justice Gorsuch urges in that rather pointed chapter); and justice for all. While the arguments aren’t entirely novel (how much more is there still to say, really, in defense of originalism and textualism after lo these many decades?), the presentation is elegant and forceful throughout, and it is powerfully illustrated by well-chosen excerpts from Justice Gorsuch’s opinions. While one often wonders how somewhat abstract jurisprudential theories might shake out in individual cases, Justice Gorsuch demonstrates the how and the why. As I read those chapters, I could imagine the justice saying, “If you, dear reader, think I’m being inconsistent, show me how and why.” In that way, the book reflects admirable judicial candor.

Justice Gorsuch’s substantive constitutional commitments are by now known even to casual observers of the Supreme Court. The Justice doesn’t like broad delegations of legislative powers. He doesn’t like the Chevron doctrine, which requires courts to defer to any “reasonable” agency interpretations of ambiguous statutes. He doesn’t like agency adjudication, as distinct from adjudication by independent judges. He adamantly insists on the meticulous observance of the Constitution’s rights guarantees. And, at variance with common suggestions to the effect that originalism is conservative politics in drag and that every Republican appointee is a law-and-order fanatic, Justice Gorsuch has a real soft spot for individual underdogs, from criminal defendants to immigrants.

All those orientations run together in one of Justice (then Judge) Gorsuch’s best-known opinions, Gutierrez-Brizuela v. Lynch, excerpted in this book. To simplify a bit: Mr. Gutierrez-Brizuela, a Mexican national, applies for citizenship and by some miracle finds himself a competent lawyer, who advises his client in reliance on an administrative regulation that the Tenth Circuit had upheld as “reasonable” under Chevron. His case goes to the Board of Immigration Appeals and the BIA says: per Chevron, the Tenth Circuit held that our rule was a reasonable interpretation of the statute at issue—but, by definition, not the only reasonable interpretation. We’ve just thought of another reasonable interpretation, which we will now apply retroactively and guess what, you slob: you’re deported. And we’ll get deference on that determination, too, because—you guessed it—Chevron (actually a Supreme Court decision called Brand X, but you don’t want to know) grants it. The unfailingly well-mannered, courteous, judicious Neil M. Gorsuch gets really upset at the idea that an Article III court has to waive through decisions “by an avowedly politicized administrative agent seeking to pursue whatever policy whim may rule the day.” You don’t?

Justice Gorsuch’s pro-immigrant, pro-defendant decisions have won him grudging respect among some liberals and libertarians. My hunch is that the surprises won’t end there. Justice Gorsuch holds skeptical views—very skeptical views—of the “dormant” Commerce Clause, which prohibits states from discriminating against interstate commerce; and of expansive doctrines governing the federal preemption of state law. For folks with the sheer gall to engage in interstate commerce, those turn out to be the only legal defenses against rapacious states and trial lawyers. My buddies in the corporate defense bar may be in for a very rough ride.

I’m inclined to think that Justice Gorsuch and like-minded jurists—foremost including Justice Clarence Thomas—are getting this wrong. In fairness, though, the law on the dormant Commerce Clause and preemption indeed is quite incoherent and needs some sorting out. Come to think of it, that is true of lots of constitutional and administrative law. Justice Gorsuch is keenly aware of the hard work that lies ahead. Chevron aside, consider two further examples:

In a 2018 case called Oil States Energy, the U.S. Supreme Court held that invention patents may be cancelled administratively. (For most of our history, that could be done only in Article III courts.) Justice Gorsuch dissented strenuously, for reasons discussed in the book: we cannot sport away private, vested rights and displace Article III courts quite so easily. Justice Thomas, the author of the majority opinion, actually agreed with that position; he just thought that patents aren’t the sort of rights that fall under the prohibition. Okay, then: what are the rights that always require adjudication by independent courts, not biased administrators? While Justice Gorsuch’s opinion provides some useful pointers, a robust, coherent answer to that truly nasty question and a revamp of the hopelessly messed-up case law will have to await future decisions.

Much the same is true of Justice Gorsuch’s dissent in Gundy v. United States, which forcefully urged a judicial “non-delegation” doctrine to curb the delegation of legislative powers to executive and administrative agencies. (Excerpts from then-Judge Gorsuch’s opinion in an earlier, near-identical Tenth Circuit case appear in the book.) Here again, the problem is truly difficult. Here again, Justice Gorsuch’s opinions provide useful markers but fall short of a full-blown theory that might prove workable over the long run of cases.

I haven’t managed to get the tone of those observations quite right. They’re meant not as criticism but as encouragement. A constitutional rehabilitation project of the kind I’ve hinted at cannot be accomplished, and should not be attempted, in a book intended for a broad audience. It cannot be accomplished in a handful of individual judicial opinions, either; it is a long-term project for the entire Court. It will require judicial courage, patience, a certain humility, and a deeply grounded understanding of the Constitution and the way it’s supposed to work.

Neil M. Gorsuch understands all that, and he possesses those virtues in spades. To our great good fortune, he has just the right day job.

Reader Discussion

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on December 03, 2019 at 13:23:16 pm

Thanks for this review. I need to read this book. I am quite liberal on most political hot button issues. But I'm also an administrative lawyer. And administrative lawyers love Gorsuch and his Chevron opinion, which did such an elegant job of demanding fair play from politicized appointees of both parties.

Gorsuch also won my undying admiration by once quoting -- in an actual published judicial opinion -- Charles Dickens's immortal phrase: "if the law says that then the law is a ass!"

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JW
on December 04, 2019 at 01:06:47 am

Thx, JW.

My sense is that AdLaw is now beyond partisan politics. Seven of the Justices have cut their teeth on this; Sotomayor and Ginsburg are the only outliers. But those seven have firm views and you never know how it breaks in any given case (and Gorsuch, with his his distrust of executive authority, has scrambled this further). Academically the field is a mess. So for administrative lawyers, like yourself, there's a huge premium on getting this right. Not angling for five votes, but articulating some coherent theory that will hold up in the next case, and the one after that.

And if I knew how to do that, I wouldn't be blogging.

All best, thx again.

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Michael Greve
on December 04, 2019 at 10:34:07 am

Professor Greve says, "Academically the field (AdminLaw) is a mess."

And can one name any field of public law where that is not now so?

And why is that so?
Why are the courts, the prof's and the public in such a muddle as to the law's measure?

Turn on your TV right now and see the answer on display wherein 3 LawProf's kickbox their political enemy before the House Judiciary Committee, wielding the constitution as a cudgel, and but one uses it as a shield to defend the institution of the presidency.

Public law and the constitution, like religion, education, culture, ethics, morality, values, history, science, literature, art, the economy, the media and everything else we cherish or that is of existential importance, has been completely weaponized for political purpose.

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Fustigate Plumply
on December 04, 2019 at 12:02:12 pm

" It cannot be accomplished in a handful of individual judicial opinions, either; it is a long-term project for the entire Court. It will require judicial courage, patience, a certain humility, and a deeply grounded understanding of the Constitution and the way it’s supposed to work."

Greve, and by implication Gorsuch (or vice-versa?) gets this "just" right.

All too often, partisans either rejoice or lament the appointment of a new Justice, convinced that the Judicial (and Constitutional) Elysium will soon follow. And we are soon disappointed as the indeterminacy, small though it may be, of the law yields results / determinations with which we do not agree. We may then cast unwarranted and unsubstantiated criticism at the Justice(s) for their failure to usher in a New Constitutional Eden.

I am reminded of the old Hollywood comedies of a bygone era, Laurel and Hardy in which an exasperated Mr Hardy is frequently compelled to exclaim, "Well, Stanley, here is another fine mess you've gotten me into."
Constitutionally, we are in a fine mess. Not unlike our two comedic actors, it is the result of a number of poor decisions, many of which were well intentioned if poorly reasoned and not entirely mindful of the consequences.

Unlike Hollywood, a resolution is not to be had with one quick turn of script.
Greve and / or Gorsuch recognizes both the antecedents for the tragicomedy and the effort required for a solution. There is indeterminacy in COTUS. Reasonable jurists and citizens may, AND will disagree; but as Gorsuch argues what may appear as "inconsistency" may actually be a faithful adherence to the textual and / or structural elements of COTUS.

It is for us to temper our fervor and accept that this "Fine Mess" we are in will not be escaped with one sweeping judicial determination. As Greve asserts, it will take patience, humility and a clear-er understanding of COTUS, both held and expressed by the Black Robes over time.
Do not be surprised, if some decisions appear to be "off-base;" it may only be one step in a long process.

I await the results hopefully.
As for "politicized" - indeed, this has occurred; the corrective is NOT more political opinions but from the other side - it is judicial fortitude as Phillip Hamburger advises us.

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gabe
on December 04, 2019 at 12:48:55 pm

Yeah, but...

As to the AdminLaw fix, I would go with Hamburger, who would seek simply to apply the separation of powers. It isn't that legally complicated, really. (But I'm neither a LawProf nor a beaver, so I don't see the value of getting into the middle of a stream and damming it up with complexity:)

The really big problem problem is that far more than AdminLaw is a mess.

And only Thomas is onto something much bigger than merely reigning in Chevron and Auer It's about what Stephen Presser called "Restoring the Lost Constitution," and it can't be done without an active SCOTUS actively undoing what generations of active Courts did to actively undo the constitution and to actively litter the constitutional field with dead trees and dry brush that, as precedent, are still protected by judicial tree-huggers.

Alito is a firefighter, and the jury is still out on Gorsuch', but of the Nine only Thomas plumply acknowledges the necessity of cutting the trees of bad precedent and building judicial inroads to clear away the dead brush.

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Fustigate Plumply
on December 04, 2019 at 15:20:16 pm

Fusti:

I agree. Perhaps, I am simply saying that the unraveling of this fine Mess ought to proceed with all *deliberate* speed. The emphasis ought to be on "deliberate" so as not to compound some earlier errors but rather determine the proper corrective. and this, to my mind, will not be done with one simple sweep of the hand.

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gabe
on December 04, 2019 at 15:47:14 pm

And, to pursue my point, I'll quote a portion of Gabe's comment,
"As for “politicized” – indeed, this has occurred; the corrective is NOT more political opinions but from the other side – it is judicial fortitude..." and ask Gabe how even decades of "judicial fortitude" would (just for example) address the character crisis embodied in the behavior of 3 of the 4 "expert witnesses" in today's House Judiciary hearing?

"The Gang of Three" were called ostensibly as constitutional experts to render opinion testimony on the meaning of "high crimes and misdemeanors." Yet, each of The Three took his once-in-a-lifetime limelight opportunity to wildly surpass his lawful and professional limits, to grandstand his personal contempt of the President; to make demagogic, inflammatory, partisan political speeches (viewers could actually see the hatred for Trump dripping from their faces) and then to render guilty verdicts on the central matters of FACT and LAW before the House Judiciary Committee.

As a litigator in the federal courts I can state unequivocally that in any kind of case such expert testimony would be flatly inadmissible as improper, inflammatory, biased and unreliable, and if it were somehow to sneak into the courtroom its exponent would risk contempt of court and his testimony would be stricken from the trial record.

The unprofessional, outrageous behavior of The Gang of Three was, I suggest, typical of today's legal academy and fully reflective of very deep rot in the professoriate. That rot, in turn, characterizes way too many of the judges who come out of the professoriate, men and women who viewed themselves once as training social justice warriors and, elevated to the Bench, now view themselves not as Article III-confined constitutional protectors and defenders but as legally-unbound, morally-unrestrained soldiers for social righteousness.

That is the darkness at the heart of the constitutional mess in which the nation is mired. That kind of intellectual and moral corruption will not be cured by "fortitude" in enduring it.

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Fustigate Plumply
on December 04, 2019 at 17:33:52 pm

Fusti:

Your present criticism of the Bar, the Professoriate and the cesspool that masquerades as a Congress is actually mild compared to some of my previous critiques of these same miscreants.

We are in complete agreement on all of the above.

Where we differ, perhaps, is in the speed with which JUDICIAL rulings and precedent ought to be either corrected or overturned. My concern is only partly political / pragmatic - that is to say, it would be rather chaotic for the Black Robes to simply reverse themselves on the "non-delegation" doctrine and to declare that the Admin State is unconstitutional (I would welcome that, BTW) - but it is also important that the Black Robes get it right. It would well serve the cause of Constitutional governance for the Court to issue judicial determinations that are predicated upon an originalist interpretation, taking due recognition of any alleged "indeterminacy (and let us be fair here, it does exist) in COTUS and crafting, via such judicial determinations, a clear course for the future - a future that dispenses with all this EXTRA-constitutional imaginings / divinations to which the Court has been prone these last 7 or 8 decades. Also, haste may lay waste to the constitutional restoration project.
Is it not possible that jurists of the right may overstep their own boundaries or the limits inherent within COTUS?

As I said, "with all deliberate speed". One hopes that we may have learned from Brown that the phrase includes the word "speed" and that it is not as deliberate as was the implementation of that (non-originalist but morally proper) decision.

Take care
gabe

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gabe
on December 04, 2019 at 19:41:51 pm

Gotcha!
We are on the same page and agree that the trail of transition not the road of revolution is the right way back to the lost constitution, BUT ONLY where political, social or economic stakes are so high as to warrant transition. That is probably the case, for example, with AdminLaw's unconstitutional adjudication of cases and controversies since federal courts would need to be staffed up and judges appointed to handle the dramatic increased workload. It is not the case, for example, with overturning Roe and Casey and with myriad other bad cases that are precedent.
Also, the unconstitutionality of the morally-warranted Brown aside, "all deliberate speed" to me was a big mistake, not just because its ambiguity allowed states to drag their feet in desegregating public schools but because it injected the courts into enforcing a ban on segregation by creating a constitutionally-non-existent obligation to integrate and by embroiling the judiciary in decades of micro-managing public schools, county school boards and local budgets. No good came of it, and the nightmare continues.

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Fustigate Plumply
on December 04, 2019 at 19:59:36 pm

And, of course, ADS has nothing to offer for surgically removing the rot at the heart of darkness that rules our law schools which serve as internships for most of the judges who created the constitutional mess for which redress is sought with all deliberate speed.

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Fustigate Plumply
on December 05, 2019 at 08:21:58 am

BTW:

Some time back Michael Greve had an excellent essay at Law & Liberty Forum in which he addresses the issue of Admin Law Adjudication, calling for the creation of a system similar to the German system of administrative adjudication in which all cases are handled de novo and by a "judge" not captive to the regulatory agency. It may still be available in the archives.

Whu wudda thunk it that those crafty Huns would do the right thing.

And yep also on Roe not needing ADS. Dump it!

Quite right re: Brown and the Black Robes sneaking their rather large noses under the tent of state and local education. Yet, it need not have been so - but that is the subject of another (potential) essay - one that deals with judicial self conception and overreach and / or a spineless and feckless Congress.

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gabe
on December 05, 2019 at 08:52:19 am

Fusti:

Greve's essay may be found here along with some responses:

https://www.lawliberty.org/liberty-forum/administrative-law-is-bunk-we-need-a-bundesverwaltungsgericht/

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gabe
on December 07, 2019 at 18:34:46 pm

[…] book is A Republic If You Can Keep It, and, in his recent review, the usually acerbic Michael Greve is full of […]

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An Effusive Review of Neil Gorsuch's New Book - The Locker Room - The Locker Room
on January 06, 2020 at 06:03:26 am

[…] two years after joining the Court, Justice Neil Gorsuch now has a track record [Jacob Sullum, Michael Greve] Gorsuch may be joining Thomas in the position that a federal agency’s considered decision […]

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Supreme Court roundup | Overlawyered

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.