Provo • Justice Neil Gorsuch says he doesn’t recognize the Supreme Court reflected in news stories hinting at deep divisions and tensions among the nine jurists.
As he tells it, members of the nation’s highest court eat packed lunches together while Justice Stephen Breyer tests out knock-knock jokes that his grandchildren taught him. They sing happy birthday to each other, grill burgers at employee picnics and play practical jokes.
“That’s the Supreme Court I know,” Gorsuch said Friday night to an audience of about 1,000 at Brigham Young University. “Do we need more of that in our world today? You betcha we do.”
The symposium with Gorsuch was hosted by the Orrin G. Hatch Foundation, a library and think tank created in honor of the longest-serving Republican senator in history. The theme of the night’s discussion was civility, a topic explored in Gorsuch’s new book, “A Republic, If You Can Keep It,” and one addressed by Hatch in his final years in office.
“Although nowhere mandated in our Constitution, civility is no less essential to the proper functioning of our government than any amendment, court ruling or act of Congress,” Hatch wrote in a 2017 op-ed. “Without it, little separates us from the cruelty and chaos of rule by force.”
Gorsuch said he worries about the corrosive effect of cyberbullying and social media flame-throwing that have made it increasingly difficult to engage in respectful debate. He urged his listeners to act as role models by exercising kindness, even in moments of profound disagreement.
The justice said his nomination process — during which he noticed some widespread misunderstandings about the nation’s system of governance and separation of powers — galvanized him to write his book.
“So many people seem to think that judges are just like politicians with robes,” he said.
The role of a judge, however, is to interpret the law rather than to make it, he said. And, though considered one of the Supreme Court’s most conservative members, he flatly denied that justices’ decisions are predictable based on the party affiliation of the president who appointed them.
“Rubbish,” he said.
His comments come as the Supreme Court, which has long prized its image of impartiality, is finding itself in the political fray because of Justice Brett Kavanaugh’s appointment and conduct.
And Gorsuch’s appointment to the nation’s highest court in 2017 was also shadowed by a political power struggle. Former President Barack Obama had chosen Merrick Garland to fill the vacancy, but Senate Republicans refused to consider him, opening the door for President Donald Trump to nominate Gorsuch.
Since joining the Supreme Court, Gorsuch has sided with the president on a few controversial issues; he upheld Trump’s decision to ban travel from several Muslim-majority countries and disagreed with the court’s move to block the president from adding a citizenship question to the 2020 census.
Still, he has on occasion agreed with his more liberal colleagues, earlier this year joining them in reaffirming a criminal defendant’s right to a jury trial.
(Photo courtesy of Brigham Young University) Judge Carolyn B. McHugh of the United States Court of Appeals for the Tenth Circuit and Justice Neil Gorsuch of the United States Supreme Court speak with students at Brigham Young University during "An Evening With Neil Gorsuch" hosted by the Hatch Center. Photo by Jaren Wilkey/BYU Photo
On Friday, Gorsuch said he uses the original meaning of the Constitution to guide his judicial decisions, in contrast with judges who believe interpretations of the nation’s founding document should evolve over time.
“I worry that some living constitutionalists will take your rights away,” he said.
The 1857 Dred Scott decision, in which the Supreme Court ruled that black Americans could never become citizens, is an example of what can happen when justices stray from the original meaning of the Constitution, he said.
The title of Gorsuch’s book, “A Republic, If You Can Keep It,” refers to a possibly apocryphal comment made by Benjamin Franklin as he left the Constitutional Convention, and it’s a reminder that the nation’s system of government survives by its citizenry, he said.
“It’s up to you, the American people, all of us together,” he said.
The organizers of Friday night’s event designed it as a conversation between Gorsuch and federal Judge Carolyn McHugh, a former colleague of the Supreme Court justice on the 10th U.S. Circuit Court of Appeals.
McHugh, an Obama appointee, and Gorsuch “forged a friendship that transcends partisan boundaries” during their time working together, said Dallin Oaks, first counselor in the governing First Presidency of The Church of Jesus Christ of Latter-day Saints. With that in mind, Oaks, who introduced the speakers, said they were perfectly suited to talk about the role of civility in public discourse.
