Justice Neil Gorsuch’s new book is not his first. He wrote a treatise on euthanasia in 2006 and contributed to another book of legal scholarship a decade later. But his recent effort was the first aimed at the larger, more varied readership he has gained after his elevation to the Supreme Court. A Republic, If You Can Keep It is a collection of the justice’s speeches, opinions, and personal anecdotes in a volume that serves as an introduction to the man and his philosophy while reminding the reader of the need to understand and participate in the nation’s civic affairs.
That sounds like a hodgepodge, but all of the components are unified by the principle that animates Gorsuch’s public life: humility. On and off the bench, the vision set forth in this book is of a man who knows his place in the grand continuum of history and is content with it. That is a challenge for ordinary people. How much more difficult must it be to maintain a humble worldview from the U.S. Supreme Court?
What inspires Gorsuch’s humility is the Founders’ achievement, and it animates his passionate defense of the originalist school of constitutional interpretation.
Originalism is the theory that the words of the Constitution should be understood in the original public understanding of that writing. The seemingly self-evident theory — it is, after all, how nearly any other written document is interpreted — had been pushed to the fringe of the legal establishment until its recent revival, led by Gorsuch’s predecessor on the court, Antonin Scalia. Gorsuch, like most conservative lawyers and judges (and a fair few liberals, as well) finds the theory to be the best method of understanding the constitutional text.
His reasons for doing so grow out of that modest worldview. Originalism is the acceptance of the law as it is, rather than how the judge wishes it might be or thinks it should be. It makes sense from a logical standpoint. It thus requires the humility to admit that one’s own views are not necessarily greater than those of lawmakers and judges who came before, and that the document means what it means, not what you think it should mean. Judges should interpret the law, not write it.
There is no reason that an originalist result should necessarily be a conservative one, at least in the sense of Left vs. Right. Gorsuch makes this clear in the book as well as on the bench, where his originalist rulings often require him to recognize greater rights for criminal defendants because the Bill of Rights demands he do so.
On a temperamental level, though, originalism is deeply conservative. Recognizing a judge’s place as a steward of the law and the inheritor of centuries of tradition and precedent aligns perfectly with Edmund Burke’s view of society as “a partnership not only between those who are living, but between those who are living, those who are dead, and those who are to be born.” Gorsuch does not seek to perfect the law or the Constitution, merely to perfect his own understanding of them and to explain that understanding in his rulings.
St. Thomas Aquinas wrote that “the virtue of humility consists in keeping oneself within one’s own bounds, not reaching out to things above one, but submitting to one’s superior.” The “superior” in this scenario is the law itself, a field of knowledge in which judges and lawyers are merely practitioners. Gorsuch favors a judicial philosophy that reminds judges that they are subordinate to the work of the Founders and of the legislature, and mindful of their limited place in history.
That comes through clearly in a story that Gorsuch tells to start the book and to which he refers again at the close. Gorsuch clerked for his fellow Coloradan, Justice Byron White, during White’s final year on the high court. When the two walked through the Supreme Court’s halls past portraits of former justices one day, White asked Gorsuch how many of them he could identify. As Gorsuch tells it, “I admitted that the answer was about half. The justice surprised me when he said ‘Me too. We’ll all be forgotten soon enough.’”
White was famous in his lifetime not only as a judge but also as a scholar and a standout athlete in college football and the NFL. To think that he would be forgotten must have been surprising indeed to the young clerk. But today, 25 years since White left the high court, how often do we hear his name? The story clearly made an impression. The message behind it — that White was far-sighted enough to understand history’s future verdict and modest enough to accept it — is one that reverberates throughout this book. Gorsuch acknowledges justice, the Constitution, and the law as his rightful superiors. It is an attitude that more of those in public service should consider.
Kyle Sammin is a lawyer and writer from Pennsylvania, and the co-host of the Conservative Minds podcast. Follow him on Twitter at @KyleSammin.
