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Ask the authors: The originalist republic – Justice Gorsuch’s “A Republic, If You Can Keep It”

The following is a series of questions posed by Ronald Collins to Jane Nitze and David Feder in connection with Justice Neil Gorsuch’s  “A Republic, If You Can Keep It,” co-authored by Nitze and Feder.

Jane Nitze served as a law clerk to Justice Gorsuch on both the Supreme Court and the U.S. Court of Appeals for the 10th Circuit and to Justice Sonia Sotomayor. David Feder served as a law clerk to Justice Gorsuch on both the Supreme Court and the 10th Circuit.

Welcome Jane and David, and thank you for taking the time to participate in this question-and-answer for our readers. And congratulations to you and the justice on the publication of this thoughtful book.

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Question: Of all the books written by Supreme Court justices published while they were on the bench – some 350-plus such works – this may be the first one credited to former law clerks “with” a sitting justice. Typically, such collaborations are tucked away on the acknowledgements page, so it must have been a great honor when the justice extended this rare courtesy.

How did this title-page credit and working relationship come about?

Nitze & Feder: It was a great honor, and an unexpected one at that. We did not ask the justice to put our names on the cover — he offered of his own accord. That speaks to the type of person he is. He embodies the values that he preaches in the book: kindness, generosity, friendship and more. All his clerks have felt the power of his mentorship; he lifts up the people around him.

The working relationship came about at the conclusion of each of our respective clerkships with the justice. We each deeply respect his philosophy and jurisprudence and were grateful for the opportunity to continue to work with him in assembling the book.

Question: As noted in the book, the title comes from a 1787 quote from Benjamin Franklin. Of course, Chief Justice Earl Warren also selected it as the title of a work published 47 years ago. In some important respects, Warren’s was a very different kind of book with a different take on the role of a justice and how to interpret law.

Did you ever consult or discuss the chief justice’s book while working on this project?

Nitze & Feder: We never discussed the chief justice’s book, but we think the title is apt for a judicial book because it focuses the attention where it should be in our democracy: with the people, not with the judges.

Question: In reading this book one cannot help but notice a genuine sense of the need for civic virtue. That concern is couched in terms such as “civic responsibility,” “humility,” “integrity,” “patience,” “impartiality,” “kindness” and the value of reasoned judgments, not merely in the governmental realm but, more importantly, in society as well. Do you think we will hear more from the justice on this matter, not only in his judicial opinions but perhaps also in his extrajudicial statements?

Nitze & Feder: Yes, undoubtedly. The justice has made civics and civility the focus of many of his extrajudicial speeches, both before and during his time on the Supreme Court. He believes in the great American experiment of self-governance, and often speaks of the sorts of values that unite us as Americans and that are essential to ensuring our republic survives for generations to come. So, for example, he’s teamed up with Justice Sonia Sotomayor to promote iCivics, a civics education program, and we expect such efforts to continue.

Question: Henson v. Santander Consumer USA Inc., a statutory-interpretation case concerning the meaning of “debt collector” under the Fair Debt Collection Practices Act, was Gorsuch’s first Supreme Court opinion – one that his former boss, Justice Anthony Kennedy, happily signed on to by way of a hand-penned “join memo.” Not surprisingly, this unanimous opinion is included in your book.

What do you see as the main strengths of this textualist opinion?

Nitze & Feder: To begin, Henson illustrates the exemplary writing that has earned the justice praise from people of all stripes, and shows his ability to turn a fairly complex statutory interpretation case into one that even a nonlawyer could understand. The justice believes it’s important that the public as well as the litigants who come to court — not just the lawyers — be able to understand why the court reaches its decision.

The opinion, moreover, does an excellent job explaining why textualism matters. What happens when you try and further a statute’s perceived purpose over its text? Well, first and foremost, as the opinion explains, you face problems of democratic legitimacy. Often enough, a compromise embodied in the text was the price of getting enough votes to secure a statute’s passage. Besides, when it comes to the sorts of hard questions that the Supreme Court gets, can’t both sides usually make a pretty good argument about what best furthers the statute’s purpose? Faced with exactly that scenario, Henson explains that following the statute’s text itself, rather than trying to divine its unexpressed purpose, was the only legitimate (as well as the most prudent) course.

Question: There are competing notions of originalism. For example, there is Justice Hugo Black’s generous application of originalism in his dissent in Adamson v. California and Justice Clarence Thomas’ more cabined understanding in his concurrence in American Legion v. American Humanist Association. And then there is Professor Raoul Burger’s version in his book, “Government by Judiciary: The Transformation of the Fourteenth Amendment,” in which Burger argued that Brown v. Board of Education was wrongly decided as a matter of original meaning. There have been divergent applications of the theory in the same case, as exemplified by Justice Antonin Scalia’s majority opinion and Justice John Paul Stevens’ dissent in District of Columbia v. Heller.

How is a jurist’s discretion limited in any meaningful way if the same theory can produce radically divergent results? How do you suppose Gorsuch would determine which precise methodology of originalism is the preferred one?

Nitze & Feder: We don’t think we can do better than Justice Gorsuch’s reply to this frequent question, from his speech “Originalism and the Constitution”:

“[L]iving constitutionalists often pursue their indeterminacy argument this way. They point to cases where originalist justices on the Supreme Court have disagreed about the Constitution’s original meaning. They say, ‘Aha! See, the promise of being able to figure out the original meaning of the Constitution is such a sham even they can’t agree.’ But what does the occasional dis­agreement between originalists really prove? We all know that the cases that land in the Supreme Court are the hardest ones in our legal system. So why should it surprise anyone that faithful originalists on the Court sometimes disagree on the original meaning of some of its provisions? And why should that be an indictment against the meth­odology?

After all, if there’s one piece of terrain that living constitutional­ists do not want to pitch their battle upon, it’s determinacy. Original­ism makes many of the living constitutionalists’ hard cases quite easy. Is the death penalty constitutional? Yes, the Constitution expressly mentions it multiple times. Does the Sixth Amendment require con­frontation or are there a bunch of balancing tests and unenumerated exceptions we must devise? We know the answer because the text tells us. And while originalists may sometimes disagree on outcomes, they are at least constrained by the same value-neutral methodology and the same closed record of historical evidence. Come to us with argu­ments from text, structure, and history and we are bound to listen with care and do our best to reason through them. Allow me to reign over the country as a living constitutionalist and you have no idea how I will exercise that fickle power.”

Question: This question is directed to both of you as practicing lawyers who either litigate cases or offer advice to clients or policymakers. Do theories of judicial review and constitutional and statutory interpretation, such as originalism and textualism, actually determine how you defend or counsel a client? For example, what if a nontextualist or nonoriginalist argument, consistent with settled law, favored your client whereas a textualist or originalist argument did not?

In that context, can we speak of lawyers as “textualist” or “originalist” lawyers? Or are such methods of interpretation more (if not entirely) a concern for appellate judges rather than for practicing lawyers?

Nitze & Feder: Surely one can be a practicing lawyer, rather than a judge, and yet firmly believe that originalism and textualism are the only legitimate methods of interpretation under our Constitution and its separation of powers. What types of arguments one chooses to press depends, in our view, on the circumstances, such as whether a lawyer is pressing his or her own view in a debate or those of a client’s before a court.

Question: In a portion of a tribute (reproduced in the book) to Justice Byron White, for whom he once clerked, Gorsuch wrote: “Justice White was famous for dissenting from denials of certiorari – he authored more than two hundred of them.”

Do you think Gorsuch is of a similar mindset when it comes to issuing dissents to denials of cert?

Nitze & Feder: Like Justice White, Justice Gorsuch cares deeply about every case that comes before him. So in that respect, it’s not surprising that he takes the time to write dissents from denials of certiorari when he thinks a case is worthy of the court’s attention. It’s very much in line with how he views his role as a judge: a judge should do his job and nothing more or less than that. And that includes hearing the cases worthy of being heard, such as those in which there is a circuit split, even if it’s not a particularly “important” case in the eyes of some.

We think this also goes to one of the reasons he declined to join the cert pool. As he recently told the Wall Street Journal: “There are 8,000 people a year who want this court to hear a case. We only hear about 70. I don’t think it’s asking too much of me to spend a little bit of time looking at those and doing it in-house, in our chambers, the old-fashioned way.”

Question: In a speech he gave at Florida State University College of Law (reproduced in the book), Gorsuch stated: “Taking a risk may mean anxiety along the way, but it will make you wildly happy if it succeeds and wiser if it fails.”

Is Gorsuch a risk taker? If so, how?

Nitze & Feder: In some ways, definitely. We suppose he’s unlikely to go paragliding anytime soon, but he’s certainly taken risks in his own life and career. Many of these he talks about in speeches to young lawyers collected in the book. For example, he took time to go to England for a fellowship, rather than walk the more narrow path straight to a law firm. Then in his choice of law firm he veered to the smaller, less established shop that was started a couple years before by a few friends. It could have collapsed but he took the risk, and as he tells it, it paid off: He was thrown in the deep end and gained great experience quickly. And then once he was an established partner, he departed to go into public service — yet another risk, but one that turned out to bring great professional joy.

Question: In the chapter entitled “The Art of Judging,” Gorsuch takes issue with portrayals of jurists who rule one way or another in a particular case or class of cases. He also takes exception to portrayals of justices as “‘liking’ or ‘disliking’ this or that group of persons.” That said, there are certain controversial areas of law in which the “conservative-liberal” divide is virtually certain to manifest itself time and again, regardless of the interpretive method employed.

In such instances, aren’t such labels warranted? If not, why not?

Nitze & Feder: We don’t think so. If a judge has this or that reading of (say) the Fourth Amendment, it’s not surprising he or she would rule the same way time and again on the issue. That’s a sign of consistency to be applauded, not denigrated. But it also doesn’t mean that the judge “likes” or “dislikes” a particular individual or group of individuals that happen to be favored or not by those opinions.

Besides, these areas are actually pretty rare and aren’t the norm. As Justice Gorsuch explained in a speech, “Law’s Irony,” while he was on the U.S. Court of Appeals for the 10th Circuit: “As you know but the legal cynic overlooks, the vast majority of disputes coming to our courts are ones in which all judges do agree on the outcome. The intense focus on the few cases where we disagree suffers from a serious selection effect problem. More than 90 percent of the decisions issued by my court are unanimous; that’s pretty typical of the federal appellate courts. Forty percent of the Supreme Court’s cases are unanimous, too, even though that court faces the toughest assignments and nine, not just three, judges have to vote in every dispute. In fact, the Supreme Court’s rate of dissent has been largely stable for the last seventy years — this despite the fact that back in 1945, eight of nine justices had been appointed by a single president and today’s sitting justices were appointed by five different presidents.”

Question: One motif in the book is Gorsuch’s concern about structural matters and how they relate to separation-of-powers issues. He voiced one such concern in the book and also in his dissent in Oil States Energy Services v. Greene’s Energy Group, in which he emphasized the need to police “the boundaries between executive and judicial functions and between the executive and legislative roles.”

What kind of structural/separation-of-powers issues most concern Gorsuch?

Nitze & Feder: We think the introduction to the book says it best:

“[A]ny reflection on our Constitution has to begin with an appreciation of its design. Of course, the Bill of Rights is vital: It promises the right to free speech, free exercise of religion, and so many other essential liberties. The Reconstruction Amendments and their promises of equal protection of the laws and due process are foundational too. But without limits on the powers of government, the promises of individual rights contained in these provisions are just that: promises. Our founders knew that the surest protections of human freedom and the rule of law come not from written assurances of liberty but from sound structures. As James Madison put it, men are not angels and the value of their promises depends on structures to enforce them.”

One of the things the justice talks about in the book is that the legal profession has focused heavily in the past few decades on the divide between the legislative and judicial branches. A renewed dedication to originalism and textualism is one of the upshots of that time and effort. But along the way we seem to have neglected devoting equal time and effort to the other two sides of what he calls the separation-of-powers triangle: the divide between the executive and judicial functions and between the executive and legislative ones. So he included a speech in the book, “‘Power Without Law’?,” that focuses on those two divides. After all, the rule of law depends on keeping all three governmental powers in their proper spheres.

Question: There is much in “A Republic, If You Can Keep It” that calls for major changes in existing law. Beyond those areas already mentioned, for example, Gorsuch warns of the “proliferation of federal criminal laws,” both statutory and regulatory. He is also concerned about excessive discovery in the civil-law context, particularly in “an age when every bit and byte of information is stored seemingly forever and is always retrievable.”

In light of all of this, would it be fair to call Gorsuch a reformer? If not, how would you characterize his calls for significant changes in our law?

Nitze & Feder: We wouldn’t apply any particular label to the justice; after all, “reformer” can mean many things to many different people. But does he think that our judicial system has its flaws, even while being the best the world has ever seen? Yes. We must have candid conversations about some of the ways in which we still fall short of our aspirations. Over-criminalization — the tendency, as he puts it in “Law’s Irony” (quoting Senator Joe Biden), to “federalize everything that walks, talks, and moves” — is something he has spoken about often. As are the areas where the system still struggles to offer affordable legal services. As he put it in the chapter “Toward Justice for All,” “I couldn’t afford my own services when I was in private practice; today’s law school graduates can’t either.”

Recommended Citation: Ron Collins, Ask the authors: The originalist republic – Justice Gorsuch’s “A Republic, If You Can Keep It”, SCOTUSblog (Sep. 20, 2019, 11:00 AM),