Neil Gorsuch Remarks on "A Republic If You Can Keep It"

This week’s speech is part of the transcript in the opening remarks in Supreme Court Justice Neil Gorsuch’s 2019 book, “A Republic If You Can Keep It”

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A decade earlier, the Senate had confirmed my judicial nomination to the Tenth Circuit by a voice vote, without opposition, and with the support of both of my home state's senators, one a Democrat and the other a Republican. My hearing had lasted about fifteen minutes. This time around was different. As the months-long process unfolded, I heard people speak about the law and my decades in the profession in ways I didn't recognize. Some suggested that as a judge I "liked" one group of persons or "disliked" another.

In an effort to prove their point, they would sometimes single out a case where I had ruled for or against a particular kind of person but overlook plenty of cases where I had ruled the other way. Often, too, they would fail to engage the critical legal or factual reasons for the different outcomes. Others insisted that I promise to overrule certain decisions they disagreed with or reaffirm ones they preferred.

By the end of it all, I came to realize that some today perceive a judge to be just like a politician who can and must promise (and then deliver) policy outcomes that favor certain groups. They see the job of a judge as less about following the law and facts wherever they lead and more about doing whatever it takes to "help" this group or "stop" that policy. And it struck me: It's one thing to worry some judges might aggrandize their personal preferences over a faithful adherence to the law; but it's another thing to think judges should behave like that.

The idea that judges do and should —allow their policy preferences to determine their legal rulings was foreign to my experience in the law. The judges I admired as a lawyer and those I have come to cherish as colleagues know that Lady Justice is portrayed with a blindfold for a reason. These judges strive every day to ensure that their decisions aren't based on which persons or groups they happen to like or what policies they happen to prefer. They don't pretend to be philosopher-kings with the right or ability to pronounce judgment on all of society's problems. They never boast that they can foresee all the (often unintended) consequences of their decisions, let alone accurately calculate the optimal social policy outcome. They don't seek favor or fear condemnation but recognize instead that the judge's job is only to apply the law's terms as faithfully as possible.

As the process unfolded, I came to worry that our civic understanding about these things—about the Constitution and the proper role of the judge under it—may be slipping away. At our founding the people fought a revolution for the right not to be ruled by a monarch or any other unelected elite, judges included. They wanted to rule themselves. They knew the right of self-government promised many gifts. The right to chart our own destiny as a people. To speak our minds, work as we wish, exercise our own faiths or none at all, pursue happiness as we see it, and secure a more promising future for our children. And to do all this in a culture that cherishes differences and aspires to assure equal treatment under written law.

The framers also knew that with a republic comes responsibility.

Self-government is a hard business and republics have a checkered record in the court of history: Often they flicker brightly only to dim quickly. To succeed where so many others had failed, the framers understood that our republic needs citizens who know how their government works—and who are capable of, and interested in, participating in its administration. We won't always agree about the right policies for the day. That's to be expected, even treasured. After all, the capacity to express, debate, and test all ideas is part of what makes a republic strong. But to have any chance we must be able to listen as well as speak, to learn as well as teach, and to tolerate as well as expect tolerance. This republic belongs to us all—and it is up to all of us to keep it. I think that's what Benjamin Franklin was getting at when he spoke publicly after he emerged from the Constitutional Convention. A passerby asked what kind of government the delegates intended to propose, and Franklin reportedly replied: "A republic, if you can keep it."