In the first of a two-part interview with Neil Gorsuch, the Supreme Court justice remembers Ruth Bader Ginsburg, analyzes 5-4 decisions, and discusses the purpose of the high court.
Supreme Court Justice Neil Gorsuch may be considered a replacement for the late Justice Antonin Scalia in more ways than one. Scalia was a semi-regular on television, outside the usual appearances for sitting Supreme Court justices, which helped solidify his reputation as a standard-bearer for conservatism on the Supreme Court. Maybe Gorsuch picked up the torch from Scalia last month when he interviewed with Firing Line’s Margaret Hoover on PBS.
Hoover, properly socially distanced, engaged the judge on joining the high court, the agreement among justices, and his definition of originalism and textualism. The interview took place after Justice Ruth Bader Ginsburg’s death and before the November elections. On Ginsburg, Gorsuch offered heartfelt sadness at the “tremendous loss we suffered here.”
Incredible Achievement
Informed by Hoover that he agreed with Ginsburg 62% of the time, Gorsuch responded that wasn’t surprising. There are more than 50 million lawsuits filed in the United States every year, and only about 70 make their way to the Supreme Court. And for those, Gorsuch said, “we resolve 40% of them unanimously. That doesn’t happen by magic. Ask nine people where they want to go to lunch; see if you get some disagreement.”
What about the 5-4 decisions that indicate the Court is deeply and evenly divided? Gorsuch put it in historical perspective as normal since the first half of the 20th century. The 5-4 cases constitute between 25%-33% of the docket, and those numbers have been the same since about 1945 when Franklin Roosevelt appointed eight of the nine justices.
Madison Was Right
Gorsuch is an admirer of James Madison, author of the Bill of Rights. He shared Madison’s lament that, without the proper structure of government, promises to protect rights would not “be worth the paper they’re written on, and I think he’s right. Madison was right then, and I think he’s even more right now.” The justice mentioned that all the communist countries have excellent bills of rights:
“If you asked me my favorite, I’d have to go with North Korea’s. Everything in ours, plus the right to free education, free medical care, and even a right to relaxation. But what good are those rights if the power all resides in one person’s hands? Then those rights don’t mean very much. It’s the separation of powers that keeps us free.”
Although not delivered in Scalia’s machine-gun style, Gorsuch’s opinion on the proper role of the Supreme Court, described in measured tones, is indistinguishable from his predecessor’s. Scalia loudly and often complained that the Supreme Court was not a good place for the nation to settle most contentious issues. Asked why it’s not the Supreme Court’s job to legislate, Gorsuch said:
“We are not representatives of the people; we are not answerable to the people. We’re perfectly suited for the job of interpreting the law … Writing laws to govern 330 million Americans across a continental nation? It’s not what we were designed to do. Who would design a constitution that gives that job to nine old people sitting in Washington? Nobody would write such a constitution.”
A Dose of Humility
On Jan. 31, 2017 — the night of his nomination — Gorsuch and his wife Louise were in the White House waiting for the big announcement. Before his selection was made public, he informed Justice Anthony Kennedy, for whom he clerked. When Louise called her skeptical father, he immediately said he was sorry it wouldn’t be Neil. Informed she was making the call from the Lincoln Bedroom, her father said, “Trump’s probably got another guy down the hall.”
(The last part of this interview covers textualism v. originalism and the living Constitution.)
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Read more from Scott D. Cosenza.
