Justice Neil Gorsuch on the ‘Miracle’ of Agreement on the Court

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0:37Here's what to make of it.

0:45I'm David French. I'm an opinion columnist at The New York Times. When I had the opportunity to interview Justice Neil Gorsuch and his co-author Janie Nitzi, about their new children's book about the Declaration of Independence, I jumped at the chance for a couple of reasons. One, I'm always happy to talk about the American founding. And number two, it's always a wonderful opportunity to talk to a justice of the Supreme Court and to get to know more about where they're coming from and what they think. So the conversation you're about to hear was very interesting, but I have to give you some caveats.

1:24When you talk to a judge, it is not like talking to a politician. You cannot talk about pending cases. You can't talk about facts or circumstances that might be pending cases. And you definitely, absolutely cannot talk about politics. But the conversation was very rich and very interesting, even with those caveats. I talked to Justice Gorsuch about his approach to originalism. I talked to him about his Native American jurisprudence. I talked to him about his approach to writing opinions. There is a lot in here. So I'd invite you to listen to this conversation, give it some thought, and then in the comments, tell me what you think.

2:08Justice Gorsuch, thanks for being here. David, it's a pleasure to be with you. I have to say it was a really fun trip down memory lane for me to read your book, which is called Heroes of 1776. It's arriving right at the 250th. And it's a beautifully illustrated book about the Declaration of Independence. And for me, it was a trip down memory lane because it reminded me of my childhood. What ignited my love for American history were books just like this. They were called American Heritage Illustrated. I remember them. And it made me curious, what is it that instilled your interest in the Constitution of the United States and our founding?

2:46David, my story is very much like yours. And that's exactly why Janie and I wrote this book, right, is to try and inspire the next generation to see the great ideas in our declaration, their promise, and also the responsibilities that come with it. And maybe inspire them through some stories about some of the framers they know, but maybe some they don't know that might inspire them to pick up the baton themselves. Yeah. I mean, for me, that was the effect. I would read these stories. it would capture my imagination. And in reading your book and going through your book, there were two parts that really stood out to me, and I want to dive into both of them, the process and the results, which exactly is how lawyers think about these things, process and result.

3:33The first was the process of actually writing the Declaration and the way in which John Adams handed the pen to Thomas Jefferson and how much of this declaration really was coming from the mind and heart of Thomas Jefferson. And so talk to a little bit about this process. How is it that Jefferson got the pin? Well, so they fought over it. And not the way you're thinking, though, right? Just the opposite. So the story goes, and this is from Adams. This is his own letters that he wrote about it afterwards. And Adam said, I will not. And you should do it for three reasons. What are the reasons? He said, one, I am suspected, obnoxious, and unpopular.

4:18You are very much otherwise. Two, you're a Virginian, and a Virginian should be seen to be head of this business. Can I stop you right there? No, let me finish three. Let me finish three. We can talk about two. Two is very important, But so is three. He said, you write 10 times better than I do. And Jefferson said, all right, I'll do it. All right, now you can tell. Okay. Well, was that humility or strategy or a combination to say that Jefferson writes? Well, I think number one is humility, for sure, and probably true. All right. Number two was strategic, for sure, right? I mean, you had had the Boston Tea Party and all the goings on in Lexington and Concord.

5:00what is it to a Virginian? You've got to drag everybody along. And you have to remember, everybody thinks we live in divided times. Fine, whatever, we can talk about that. But back then, only about 40 % of the country was backing the patriot cause, even in June and July of 1776. Another percent were devoted loyalists. And then the balance of the country was somewhere in between. Sound familiar? Yeah. Yeah, absolutely. So Virginia nationalizes this, in other words. It takes it away from being a Massachusetts rebellion, those ornery Puritans, and it turns into an American revolution. Now, the other thing that struck me is Jefferson kind of squirrels away and does the writing on his own.

5:43And so these really seminal words, this American mission statement, we're endowed by our creator with certain inalienable rights. This really does seem to be Jefferson's heart expressed on paper, not writing by committee. Well, there's some of that too. This is later on, and he called the mutilations what people did to it, all right? We think of the Declaration as this wonderful mutilations. Anyway, but yes, he locked himself in rooms he had rented from a bricklayer on the outskirts of Philadelphia, and he did it in two weeks. And he said he didn't consult any book or pamphlet. He tried merely to come up with an expression of the American mind.

6:21And I don't think he was thinking about just his mind. I think he was thinking about how people were thinking at the time. And in that, he came up with three, I think, perfect ideas that were all created equal, every one of us, and that each of us has inalienable rights given to us by God, not privileges from government, and that we have a right to rule ourselves. And those ideas were incredibly radical at the time. We forget that. We think of them as the air we breathe. But in 1776 in Europe, it was a shockwave, right? A British newspaper said Americans had declared for themselves an unalienable right to speak nonsense.

7:03So the second part, we talked about process. There's also results, outcome. What was striking to me is about the last third of the book is about the costs that were paid. That we look back on the Revolutionary War as a glorious victory, and it was, but at terrible cost. So talk about a little of the cost that the signers of the Declaration endured. Before we leave process. Okay. All right. Let's not leave process too soon. Well, no, we're lawyers, all right? You forget that it wasn't like they snapped judgment. It was unanimous, right? We don't talk about this nearly enough, the people behind the Declaration.

7:43And to my mind, it's always the people and the humanity of them that inspires me. A third of them lost their homes, the signers, destroyed by the British. Many of them were jailed. Some of them had their wives jailed, their children jailed. When they said they devoted one another their sacred honor, their fortunes, all of that, they meant it. They spent their fortunes on the revolutionary cause. One of my favorite stories in the book is Thomas Nelson, one of the signers from Virginia. He was head of the militia, a Virginia militia at Yorktown. And when he saw that the British were using his home as a headquarters, he didn't hesitate to have men fire on it.

8:30and when he died impoverished many years later, having spent much of his fortune on the Patriot cause, so poor that they buried him in a marked grave so his creditors couldn't use his body as collateral. Think about that. That's astonishing. He was asked, do you have any regrets? And he said, I'd do it all over again. So there is an interesting symmetry here between this book and your last book, Overruled. Hang with me here. I'm waiting. Okay, I promise you I'm gonna connect these two because I think there's an interesting way they connect to me with your jurisprudence. Oh, wow, now that's a trifecta if you can do that.

9:13We're going for it, we're going for it. Okay, so here's what I see in Overruled and here's what I see in especially the last bit of the book where there's such an emphasis on the punitive power of the state attacking and depriving the rights of vulnerable people. Overruled was a lot about a more peaceful version of this, where you have very large bureaucracies, very complex webs of rules and regulation that trap regular folks in their web. And it's always struck me. I have always seen your jurisprudence, and forgive me if this is something that you're going to completely disagree with, is a combination of originalist and anti-bully.

9:51And I see that in both of these books, and I have seen this in many opinions that you've written. And so I just wanted to float that idea past you about your own jurisprudence. Well, that's like saying, hey, Gorsuch, lie down on this couch and analyze yourself. But I'll take a shot at it, okay? I'll take a shot at it. I don't know. I don't know. You've realized your theories. But I would say that one of the most striking and inspirational things about the American experiment to me is it's the emphasis of places on the individual and his intrinsic value. You're not valuable as a cog in a machine to others' ends.

10:33You have value in your own right. You are my equal. You have inalienable rights. You have every bit as much right to rule yourself as I do. And those ideas, I just think those are perfect ideas. Are they imperfectly executed? Do we have a ways to go even today? You betcha. But those ideas speak to every human heart. They exclude no one, and they inspire me, yes. Well, and I've also noticed, not just from you've written a book about the 250th anniversary of the Declaration, but read many, many of your opinions, and you really focus a lot on history and case after case. And I've been particularly struck by your focus on history in the Native American cases.

11:20You have developed a reputation as maybe the greatest friend to Native Americans who's ever sat on the Supreme Court. And what I wonder is, has that careful attention to history, has that alerted you to a lot of the legal injustice that has been visited upon, you know, the Native American population in the United States for so very long? Well, without getting into cases, I think, no, no, that's fine. I'm just trying to abstract from it a little bit in the answer. I do not know how you run this country without knowing its history. I do not know how you can be a good citizen exercising the responsibilities without knowing something about how it operates.

12:03How do you work a machine if you've never read the how-to manual? We were talking about this beforehand. History is endlessly fascinating, and it has so much to teach us, so many mistakes that were made. It's like an example of iterative responses to problems, and you can see what's worked and what hasn't worked over time. If you bother to open the book. And the problem today, I think we would agree, is that too few people opened the book. So I'm hoping instead of maybe Goodnight Moon, maybe if parents are a little tired of that, perhaps they'll try Goodnight Ben Franklin, you know, Heroes of 70 to 76.

12:41I love it. So, but let's stick with the history thing for a minute, because I have long thought of myself and have described myself since probably my first year of law school as an originalist, That's how I describe myself to people when I talk about how I think about the law. But there's this phrase that we use when talking about originalism, text, history, and tradition. And the history part, to me, is both promising and perilous. The promising part is obvious. You're going to learn more. The more you dive into the history, it's going to bring the words of the Constitution to life. You're going to understand what they meant when they said what they said.

13:18But also, history is incredibly complicated and often contradictory. Yes. So here comes the perilous part. When you are looking at the history portion of this text, history, and tradition analysis, how are you adjudicating what is aberrational and exceptional versus consensus? And how do you decide which people to listen to, such as like an early American legislature isn't an interpretive body. They're not interpreting the law the way, say, a judge was, but how relevant is what they do? So how are you sorting through this incredibly complicated history that bears on so many of our cases? David, you ask a very good question of an originalist about methodology.

14:01It's an important question. Answering it is complicated, difficult, and lull. I would say only this. You're asking the right question. Instead of asking what the judge ate for breakfast or what he thinks a perfect world should look like, He's trying to answer what the words the people of the United States in their constitution or the laws adopted. And in that way, he's bringing real the promise of the declaration of self-rule rather than rule by judges. So, yeah, we can have a long, fun, academic conversation about sources and sorting mainstream from aberrations. But that's the project of trying to figure out what the original meaning of the law is.

14:46You know, as a journalist, I'm very keenly aware of when I write something if people are interested in it and not interested in it. And I've noticed this big flip over the last five years. We've gone from a situation where if I'm writing and talking about Supreme Court cases around some of the classic hot-button culture war issues such as, you know, abortion, free speech, the conflict between religious liberty and gay rights, et cetera, there has been much less interest. and by contrast, much greater interest around separation of powers. And when we're looking at the Declaration of Independence, this is a book about the Declaration of Independence, not the 1787 Constitution, but the Declaration of Independence.

15:28But it's got this core American promise to it about we're endowed by our creator with certain unalienable rights, among them life, liberty, and the pursuit of happiness. It's the role of government to protect that. How does separation of powers protect life, liberty, and the pursuit of happiness? Well, first of all, I think it's fascinating what you say, that people are interested in the separation of powers, and I'm delighted to hear it. And the way I think of it is this, that, okay, the Declaration's our mission statement. It's what we're aiming for. Imperfectly, through lots of hardships and battles, but that's what we're hoping for.

16:04And we're a creedal nation, right, David? I mean, we don't share a religion. We don't share a race. We share an idea, okay? And that idea has to be passed down generation to generation through the histories we discussed. All right, the Constitution with its separation of powers is our how-to manual, okay? And the one thing Madison knew in devising the Virginia plan, basis of the Constitution, is that men are not angels, all right? And you have to separate power assiduously to keep us free, to ensure that everybody is treated equally. to make real the idea of self-rule and certainly to protect your unalienable rights.

16:45So I'm going to float an idea by you, and I would love to hear your reaction. I'm a free speech advocate. I don't like the whole concept of trigger words, except I do say I have one trigger phrase. I do not like to hear co-equal branches of government. And I tell you why. That's the good English grammarian in you. I don't like that, but I don't like it because I don't think they are exactly co-equally. Oh, interesting. I think of Article 1 is Article 1 for a reason. You might say first among equals would be the congressional branch. And it strikes me that one of the reasons why, and I'm not going to ask you to cast shade, as the kids say, on another whole branch of government.

17:25But it strikes me as one of the reasons why the Supreme Court is so much in the center of the national conversation right now is that in many ways Congress has taken steps back. And a lot of your decisions have been, wait a minute, this is something that Congress has to decide, that this is a role for Congress only. So in separation of powers, it is just not the case, right, that when one branch steps backwards, another one has to step forward. Well, I do think it would be crazy to say we are a democracy or a republic and yet simultaneously entertain the notion that nine old judges in Washington should govern us all.

18:12Okay? Now, you'd want nine wise old judges to decide the meaning of a law independently without fear or favor to anyone and vindicate your rights in a trial. Absolutely, that makes perfect. But to rule everybody, to pass the laws, to amend the Constitution, that would make a mockery of the Declaration and of the Constitution. And so, yes, it is their responsibility. Now, I want to defend them a little bit. Okay. Please, because I don't. Because they pass about two million words in new legislation every year, every term. I can't remember which, but they're doing a lot, and they're keeping us pretty busy, David.

18:57So I think of, when I think of, and your book is about the Declaration of Independence, not the Constitution. And I think of, when I think about the relationship between the two, I think of the Declaration of Independence as, to use a corporate analogy, it's like the mission statement. Yeah. And the Constitution is the bylaws. Okay. It effectuates the mission statement. But my question is, how much do the sweeping sort of principles of the Declaration of Independence, do they inform your work at all? Or is that more of historical interest than it is sort of practical interest? I think they inform the work of every citizen.

19:33And we talk about this at the end of the book. Okay, here are these three ideals. Were they real for everybody? And certainly not. But the women at Seneca Falls in 1848 could appeal to the nation and say, yeah, all men are created equal. So are all women and men. And Lincoln could say in the Civil War, how can you possibly maintain a system of slavery when you say all men are equal? Come back to the truths in the Declaration. Martin Luther King down the mall here in 1963 could call it a promissory note that had come due. And he was right. All right. They inform all of us, don't they? There's another aspect of the book that was very interesting to me.

20:18And you talked about the varied backgrounds of the signers of the Declaration. Let me ask you this about the court itself. Do you think there is value in having people of maybe, when it comes to future justices, is there value to have, say, more people with legislative experience, a greater diversity of legal backgrounds? There seems to have been an interesting professionalization of the path to the court where there is now sort of a judicial career path that's a little bit different from when I was younger. And I was just wondering what you thought about the possibility of varying in different backgrounds and what that might bring to the court, if anything.

20:58I think we've got a very, very court as it is, right? You've got nine different justices from all over the country. Well, the Acela Court or maybe overrepresented. Slightly overrepresented. Slightly overrepresented. Appointed by five different presidents over 30 years. And some of us are originalists and some of us are very much not, okay? But yet we're able to talk to one another and listen to one another and find common ground a surprising amount of the time. I mean, 40 % of our cases we decide unanimously, right? You give us the 70 hardest cases in the country every year. I mean, where lower court judges have disagreed and we're able to reach unanimity that much.

21:39I think that's a miracle, right? And a third, maybe a third of our cases are 5, 4, 6, 3. But only half of those are the 5, 4, 6, 3s you might be thinking about. And then you compare those numbers back to 1945 when Roosevelt had appointed eight of the nine justices, and the figures are the same today as they were then. And when I think about that and the diversity of the court was different then than it is now, it does remind me in going back to the men at the Declaration or at the Constitutional Convention coming from around the country with different perspectives, different voices. The rabble-rousers of Massachusetts, the folks down in South Carolina were not sure at all about this project.

22:23And they debated and they disagreed. And it shows you that people from different perspectives, different walks of life, along whatever axis, can, when they listen to one another, work together in good faith and assume that the guy across from me loves this country every bit as much as I do. Great things can happen. So one thing that is striking about your work is you write a lot of concurrences. And I'm thinking of the tariffs concurrence. And when we just had the tariffs decision, you wrote a pretty long concurrence that was really taking a look at the arguments of the other justices. What is the decision-making process that you undertake, whether you're going to write a concurrence or not?

23:09What are the steps you go through and what are you hoping to accomplish when you write a concurrence? Well, you know, I took an oath to essentially calm like I seal, all right, without fear or favor to anyone. And so that's my job. That's my job. And so when I need to do that, I need to do that. If I don't need to do that, that's all the better, right? It makes for an easier day at the office. But sometimes you have to do it. And when I think about that, I think about actually the declaration. One of the list of grievances against the king was that he had taken away independent judges and juries, right?

23:51And sent them to vice admiralty courts, colonists, essentially judges who are answerable to the king. And they wanted to send cases even back to Britain so that there would be juries there rather than in the locality. And I just think what a treasured gift we have, right? Where you know no matter how unpopular you are, rich, poor, doesn't matter. The judicial oath says administer justice without respect to persons, rich or poor, any difference. That's my job. What a beautiful job it is to just come into the office and say, what does the law, as best I can tell, as difficult as it sometimes is, I mean, the dangling modifiers and some of the statutes that we're given are— But to fulfill that oath and to try and realize what the framers of the Declaration had in mind when they listed that as one of their grievances against the king, to discharge that job is a privilege and it's humbling.

24:51So, last question. When we were talking about the 250th earlier, we were also talking about the 200th, the bicentennial. And there's a lot going on right now in our country at 250. There's a lot of division. There's a lot of contention. We don't like each other. And we were talking earlier about the potential of the 250th to bring us together. And I would just love it if you would reflect back on we're both old enough to barely remember the 200th. And can the 250th have the same effect on us that the 200th did? David, I hope so, right? I mean, I'm not – I don't want to be Pollyannish about it, right?

25:29We are always going to be divided over things. They were divided over the Declaration. Even during the Revolution, they were divided. I mean, Ben Franklin and his son were divided over the revolution. We tell that story in the book. You know, William winds up living in England as he was a loyalist. They barely spoke for years. So, of course, we're going to have our disagreements. Open up a page of history. America is always going to have its disagreements. But can there be moments and ideas that unite us? And I do think the Declaration has that power because it does speak to every one of us. And this anniversary has a little power in that regard.

26:05What does semi-quincentennial mean? It doesn't roll off the top. It doesn't roll off the top. It means halfway to 500. It's a journey. We're not at our destination. We are not a perfect union. We have work to do. And this is one of the things we have work to do on being able to listen to one another, trust one another, recognize that the person I disagree with is usually operating in good faith and loves his country too. Right? All right. But the 200th, you know, we do remember that. And it did have that power. You have to remember, as tough as things might seem to date it to you and me, well, how did it look in 1976?

26:45We just came out of Watergate. Men were coming home from Vietnam who were very different than the ones who left. We were suffering from stagflation. I mean, real. Oh, yes. Oh, and by the way, we had an unelected president. All right. Okay. And it was a moment. You know, I remember going around and painting fire hydrants red, white, and blue. I remember the Gemma family across the street in Denver took their VW bus. It was red, and they painted the stars and stripes on it. And I do think it has a potential for a moment where we can remember that more unites us than divides us in this country. Those three great ideas are perfect, and they unite us.