Ben Franklin’s quip in 1787 was a warning. Democratic republics usually devolve into mob rule or become oligarchies, or even dictatorships, and one of the Constitution’s best safeguards against those trends is the separations of powers — our system of checks and balances that fewer people these days seem to think important. Lawmakers are our moralists and ethicists; they stand for the people who elect them and advocate accordingly. Executives are the police, enforcing what our lawmakers decide. And judges are our amoral adjudicators; they interpret laws, neutrally and impartially, to be sure “the laws are legit”; that they don’t conflict with the Constitution; and they do this even when — especially when — the outcome is personally unfavorable to the judge. Without those divisions a republic’s days are numbered. History teaches hard lessons in this regard.
Franklin’s quote is a suitable title for Neil Gorsuch’s book, which came out three years ago. You’d think I would have cracked it sooner. Gorsuch is my favorite justice on the Supreme Court, but for whatever reason, I assumed this book would be like most books by SCOTUS justices — memoirs and autobiographical anecdotes about the justice’s personal life, for which I’ve little interest. Turns out there’s very little of that. Most of A Republic, If You Can Keep It is about exactly what I want: the author’s jurisprudence and his views of the proper role of judges under the Constitution. It covers a lot of ground, drawing on many court cases as examples. I’ll go through some of the highlights and examples that I found particularly interesting.
No matter how you blur the separation of powers, says Gorsuch, it ends up bad. When the judicial branch decides what the law should be, the people are excluded from the lawmaking process, replaced by a handful of judges who don’t have a constituency. When the executive branch makes new laws, a slow process that’s supposed to reflect and benefit from the views of the people is left to a single actor. And when either of the elected branches assume the judicial function, instead of a neutral judge and a jury of their peers, the people are left with politicized decision makers who will be tempted to pick winners and losers based their current popularity more than merit — whatever happens to be in fashion. “However you mix what are supposed to be separated powers, the threats to the rule of law and liberty are much the same. At risk are the promise of knowable and stable law, fair notice, democratic self-rule, and equal protection under the law.” (p 45) Americans have become increasingly blind to these dangers; they prefer immediate and favorable results, long-term consequences be damned.
The role of the judiciary is probably the most important of all, being an unelected branch charged with the highest honor or being impartial and above personal agendas. Says Gorsuch:
“Legislators may appeal to their own moral convictions and to claims about social utility to reshape the law as they think it should be in the future. Judges should do none of these things in a democratic society, instead striving to apply the law as it is, focusing backward, not forward, and looking to text, structure, and history — not to their own moral convictions or the policy consequences they believe might serve society best. If you’re going to be a good and faithful judge, you have to resign yourself to the fact that you’re not always going to like the conclusions you reach. If you like them all the time, you’re probably doing something wrong.” (p 48)
Gorsuch draws on cases to show how these threats manifest. I’ll cover two.
(1) Gutierrez-Brizuela v. Lynch (2016) shows the dangers of mixing of executive and judicial powers. Gorsuch was on the Tenth Circuit for this case, and it involved two conflicting provisions of U.S. immigration law. The first law implies that certain people who have illegally reentered the United States can gain lawful residency at any time, provided that the Attorney General grants them adjusted status. But the second states that these same people can’t gain lawful residency unless they first leave the country and wait ten years. The government said (a) that Gutierrez-Brizuela should lose and (b) that the court had to defer to its own understanding of how the two statutes should be reconciled, rather than the court’s understanding — which was allowing an executive agency to assume the role of the judiciary.
With regards to (a), Gorsuch ruled that the balance tipped decidedly toward the petitioner: Gutierrez-Brizuela had relied on judicial precedent, and it would be unfair to upset his expectations now and to create substantial uncertainty for people in similar positions. But Gorsuch also wrote a separate concurrence to address point (b) — the real elephant in the room — arguing that an executive agency should never assume the role of the courts. Specifically Gorsuch argued that the Supreme Court ruling Chevron v. Natural Resources Defense Council (1984) needs to be overturned. That ruling has become known as the “Chevron defense” and for 38 years now it has allowed executive agencies to use legislative power to perform a quasi-judicial function. It’s an ongoing bone of contention, and with Gorsuch I believe incompatible with the constitutional division of powers:
“Chevron tells us that we must allow an executive agency to resolve the meaning of any ambiguous statutory provision. In this way, Chevron seems no less than a judge-made doctrine of the abdication of the judicial duty. Transferring the job of saying what the law is from the judiciary to the executive unsurprisingly invites the very sort of due process (fair notice) and equal protection concerns the framers knew would arise if the political branches intruded on judicial functions.” (p 78)
Thus do people like Gutierrez-Brizuela end up getting shafted without fair process. Chevron is so open-ended that it allows agencies to reverse their current views 180 degrees anytime based merely on the shift of political winds — and without deigning to announce their views in advance. Chevron also says that we should infer from any statutory ambiguity Congress’s intent to “delegate” its “legislative authority” to the executive to make “reasonable” policy choices. But this is horseshit; Congress has never expressed this intent. An executive agency has no power to act unless and until Congress confers power on it; Chevron stands Constitutional rule on its head.
(2) Unites States v. Nichols (2016) & Gundy v. United States (2019) shows the dangers of the executive assuming the legislative function — in a stunning scenario in which the nation’s chief prosecutor is able to write the laws for crimes he gets to punish. In these two Supreme Court cases, the question was, could the attorney general both declare that a pre-SORNA sex offender was required to register under SORNA (Sex Offender Registration and Notification Act) and then prosecute him for having failed to register? This placed the power to make a law and the power to enforce it in the same hands — an egregious violation of the separation of powers. Samuel Alito and the four liberal justices ruled (5-3) yes, that this was fine, but they were dead wrong. Gorsuch wrote the dissent, rightly arguing:
“It would be easy enough to let this case go. After all, sex offenders are one of the most disfavored groups in our society. But the rule that prevents Congress from giving the executive carte blanche to write laws for sex offenders is the same rule that protects everyone else.”
Indeed. It’s insane to allow the chief prosecutor of the United States to write his own criminal code. It invests him with far too much power over half a million people. Alito is always out to lunch, so I expect insanity from him, but the liberals had their collective heads up their asses in Gundy.
Originalism and Textualism
From an early point in his career, Gorsuch realized the importance of originalism:
“I began to see the importance of interpreting written laws as originally understood. I saw what happens to ordinary people in real cases, to the rule of law, and to the role of the judge when courts abandon that task in favor of ‘evolving’ the law in ways they think preferable. My concerns only grew as I became a lawyer and, later, a judge. I saw people sent to jail or fined for conduct the written law did not proscribe. I saw contracts rewritten based on little more than a judicial policy preference. I came to realize that when judges abandon the original meaning of a law to pursue some other goal they find worthy, they risk exercising political will rather than legal judgment. And, in the process, they threaten the legitimacy of the judicial enterprise and the right of the people to fair notice under the law’s demands.” (p 106)
There are many judiciary examples of the road to hell being paved with good intentions. One of them is Ohio v. Roberts (1980). Gorsuch explains that the Sixth Amendment’s Confrontation Clause gives defendants the right to confront witnesses and cross-examine their testimony, but in this 1980 ruling the SCOTUS justices said that the purpose of the Confrontation Clause was simply to restrict the admission of unreliable hearsay into evidence, and that judges could dispense with it if they found the testimony “reliable”. But what does that even mean? Under this ruling, identical cases were often treated differently. Some judges found detailed statements reliable; others were fine with the briefest statements. Some judges thought because the witness was in custody, it made his testimony reliable; others thought because he wasn’t in custody it was reliable. Some judges thought testimony given right after the events was reliable; others said that the passage of time made it reliable.
This terrible standard — for all the good intentions that drove it — went on for 24 years, until SCOTUS overturned Ohio v. Roberts. The case was Crawford v. Washington (2004), in which the court ruled that the Confrontation Clause gives defendants the absolute and unconditional right to confront witnesses and cross-examine their testimony. “A defendant’s right to confrontation today can mean no less than it did at the nation’s founding. It is not for judges to decide how to balance the competing interests of efficient law enforcement on the one hand, and accurate criminal convictions on the other.” (p 110) This of course is the doctrine of originalism, which is often caricatured.
Originalism properly understood
First things first: it’s not just conservatives who are originalists. It’s true that conservatives got us back on track with orignalism in the ’80s, led by Antonin Scalia, but it’s no longer so partisan. The queen of liberals, Ruth Ginsburg, counted herself an originalist, and Elena Kagan — currently the best justice on the court after Gorsuch — said in 2015 basically that all justices who count for anything are originalists and textualists, thanks precisely to Scalia. Says Gorsuch:
“Elena Kagan acknowledged in her Scalia Lecture at Harvard Law School in 2015, ‘we’re all textualists now’. Capturing the spirit of the law school back when she and I attended, Justice Kagan went on to relate how professors and students often used to approach reading a statute with the question, ‘Gosh, what should this statute be?’, rather than ‘What do the words in the statute say?’ That much has changed, and as Justice Kagan said, ‘Justice Scalia had more to do with this change than anybody’ because he ‘taught everyone to do statutory interpretation differently’.” (p 48)
The best liberals, in other words, acknowledge their debt to Scalia’s originalist jurisprudence. So should we all. And when misguided liberals complain that originalism throws us back on an antiquated world that’s doesn’t fit with the 21st century, they’re spitballing. Originalism means that original meaning is fixed; obviously new applications of that meaning will arise with new developments and new technologies (p 111). Nor does originalism imply a disdain for precedent. It’s just a matter of getting the right precedent (as any judge would agree); there are good precedents and bad ones. Nor does originalism lead necessarily to results that are politically conservative. Gorsuch blasts that myth with ease:
“Originalism is a theory focused on process, not on substance. It is not ‘Conservative’ with a a big C focused on politics. It is conservative in the small c sense that it seeks to conserve the meaning of the Constitution as it was written. The fact is, a good originalist judge will not hesitate to preserve, protect, and defend the Constitution’s original meaning, regardless of contemporary political consequences. Whether that means allowing protestors to burn the American flag (the First Amendment); prohibiting the government from slapping a GPS tracking device on the underside of your car without a warrant (the Fourth Amendment); or insisting that juries — not judges — should decide the facts that increase the penalty you face in a criminal case (the Sixth Amendment). In my own judicial career, I’ve written many originalist rulings with so-called ‘liberal’ results.” (p 115)
He’s not kidding about that last. Many times Gorsuch has joined the liberal justices — to rule in favor of Native American Indians, the transgendered, and immigrants. As I often say, a conservative judiciary approach can be just as friendly to liberal politics as to conservative politics, because it is appropriately blind to politics. Without that, you don’t have a system of checks and balances anymore. You just have a politicized court doing as they please.
According to Gorsuch, “laypeople — and for that matter, more than a few lawyers and judges — have more misunderstandings about the nature and role of precedents than about any other aspect of legal reasoning.”
“Judges often say that they construe or interpret a statute, which means they try to determine the meaning of its language. By contrast, judges and lawyers often say that they analyze a judicial precedent. Although analyzing an opinion involves delving into the judge’s words, you must go beyond the judge’s words. You must also understand the opinion’s legal background, the facts of the case, and the relationship between those facts and the outcome. In other words, with case law [involving precedent] you can’t just interpret its language; you must also engage in legal reasoning to find what we call the case’s holding — the rule or principle necessary to justify or explain the outcome. When lawyers and judges analyze a precedent, they’re usually trying to find out what the holding is. They’re also trying to gauge how broadly or narrowly the holding sweeps — that is, how it will apply to future cases that present a similar issue but with different facts.” (p 212)
It is, to put it mildly, not an exact science, and it can enshrine bad decisions for a long time, but also good ones. I’ll cover three of the many examples Gorsuch uses — cases involving professional baseball, endangered species, and kids who belch in class.
Does major league baseball engage in interstate commerce so that it must obey federal antitrust laws, like other businesses that operate across state lines? We might think obviously yes, since professional baseball is a form of commerce, and certainly an interstate one. But exactly one century ago, in Federal Baseball Club v. National League (1922), the Supreme Court ruled that the Sherman Antitrust Act did not apply to Major League Baseball. That’s why Major League Baseball hasn’t faced any competitor leagues since 1922, and to date remains the only baseball league with an antitrust exemption. The Supreme Court’s reasoning was that “giving exhibitions of baseball doesn’t involve interstate commerce” — which is shifty to say the least.
When a farmer plows a field and unintentionally disturbs birds that have settled there, is he safe from the charge of “taking” wildlife? We might again think obviously yes, since harming or taking wildlife intuitively has to do with actions aimed at killing or capturing. As a circuit court judge put it: “If I were intent on ‘taking’ a rabbit, a squirrel, or a deer, I would go forth with my dogs or my guns or my snares and proceed to harass, pursue, hunt, shoot, wound, kill, trap, capture, or collect one of the target species.” But in Babbitt v. Sweet Home Chapter of Communities for a Great Oregon (1995), the Supreme Court ruled that the words “harm” and “take” in the Endangered Species Act can apply to habitat modification or degradation. Speaking as a conscious environmentalist, I’m a bit on the fence with this precedent. I personally approve extending the idea of harming wildlife as applying to that which interferes with the breeding, feeding, or sheltering habits of endangered species. But I disapprove of punishing farmers for unintentionally harming wildlife on their own property. If I were a justice, I wouldn’t interpret the term “harm” or “take” that liberally; that’s for lawmakers to do, if they want to amend the Endangered Species Act. To that extent, anyway, I agree with Gorsuch that this particular precedent is wrong-headed.
Belching in class (how rude… and perilous)
Then there are cases where judicial precedent can be a very good thing. In one of my favorite Gorsuch cases he was the lone dissenter, resting his case on a precedent that none of his colleagues would accept. In A.M. v. Holmes (2016), a 13-year-old middle school boy in Albuquerque, New Mexico was arrested for repeatedly belching on purpose during his gym class. The boy created a class distraction and was banished to the hallway, and he poked his head back into the classroom to belch again. At this point banishment to the principal’s office and a school detention would have been reasonable, but instead, the school had the boy arrested, put in handcuffs, and thrown into juvenile detention.
The boy’s mother sued the school officials and arresting officer and it went to court. The judges on the Tenth Circuit took 94 pages to explain why arresting the boy was legit, as the boy had violated a New Mexico statute which made it a crime to “willfully interfere with the educational process of any public or private school”. Gorsuch took only 4 pages to dissent, explaining that judicial precedent made the arrest of the boy unlawful. He pointed out that the New Mexico Court of Appeals long ago ruled that the statutory language on which the officer relied for the arrest in this case does not criminalize noises or diversions that merely disturb the peace or good order of individual classes. It criminalizes severe actions, like physical invasions of the school’s operations. Simply put, said Gorsuch, childish pranks do not justify the arrest of a child. This is a case where precedent is not only a good thing, but plain common sense. It’s too bad the mother didn’t win her case.
There’s plenty more in A Republic, If You Can Keep It that shows why Neil Gorsuch is the best SCOTUS justice we’ve seen in a long time (in my view, the best to serve in my lifetime). It’s one thing to preach good jurisprudence, and quite another to consistently practice it. Scalia didn’t always live up to his great standards. I’m not saying Gorsuch is perfect, and I’ve certainly disagreed with him at times. But in his own words, that’s fine, for there can never be agreement all of the time, and our democracy depends on our ability to reason and work with those who interpret things differently.