Wondering how Neil Gorsuch, the 10th Circuit Court of Appeals judge whom President Trump has nominated to serve on the Supreme Court, thinks about the proper role of judges? You could do a lot worse than to read the 2016 Sumner Canary Memorial Lecture, which Gorsuch delivered in April of last year at Case Western Reserve University School of Law.
The lecture was delivered two months after the passing of Antonin Scalia, whom Gorsuch is nominated to succeed. Gorsuch lavishes praise on his possible predecessor. “I was taking a breather in the middle of a ski run with little on my mind but the next mogul field when my phone rang with the news,” he says. “I immediately lost what breath I had left, and I am not embarrassed to admit that I couldn’t see the rest of the way down the mountain for the tears. … He really was a lion of the law: docile in private life but a ferocious fighter when at work, with a roar that could echo for miles.”
And in the meat of the lecture, Gorsuch lays out an approach to interpreting the law and Constitution very similar to that adopted by Scalia in his three decades as a Supreme Court justice. Both men are textualists, concerned primarily in the literal text of laws and less in their legislative history or social context of passage.
Gorsuch speaks admiringly of the approach taken in Supreme Court Justices Sonia Sotomayor and Elena Kagan’s opinion and dissent, respectively, in last year's case of Lockhart v. US, a criminal appeal concerning whether a mandatory minimum sentence applied to a defendant convicted of a sex offense. The justices disagreed sharply, but their disagreement was solely over how to interpret a vague antecedent in the text of the statute establishing the mandatory minimum.
“Neither [the opinion nor the dissent] appealed to its views of optimal social policy or what the statute ‘should be,’” Gorsuch said. “Their dispute focused instead on grammar, language, and statutory structure and on what a reasonable reader in the past would have taken the statute to mean — on what ‘the words on the paper say.’”
Of course, many cases before the Supreme Court do not reduce to such issues. Many legal scholars would argue that interpreting the law often involves invoking controversial moral or political principles or “filling in the gaps” in places where the textual and common law is unclear or incomplete, and skeptics of strict textualism in particular argue that this approach is incapable of dealing with such “hard cases.” This dispute becomes especially heated around constitutional interpretation, given that provisions like the Equal Protection and Due Process clauses arguably invoke moral concepts whose meaning changes and evolves along with society.
Gorsuch presents a forceful argument that cases of indeterminacy are, in practice, quite rare. Supreme Court cases that don’t result in a unanimous decision account for only 0.014 percent of all federal court cases. This suggests, he argues, that 99.986 percent of cases do have a determinate, uncontroversial answer. This isn't an airtight argument — some of this is due to the Supreme Court's only being able to handle a finite workload, and also due to some parties to cases not having the resources to appeal — but it’s a good reminder that a large portion of the work of appellate and Supreme Court judges is on matters that don’t arouse public controversy.
He continues, “Even accepting some hard cases remain — maybe something like that 0.014 percent — it just doesn’t follow that we must or should resort to our own political convictions, consequentialist calculi, or any other extra-legal rule of decision to resolve them.” When simple textual interpretation of the laws and evidence at hand does not point in the direction of one obvious result, that process will still come closer to accuracy, he argues, than importing the moral or political values of the judge handling the case.
By contrast, he argues that judging cases based on the social benefits of each possible outcome creates even more problems with indeterminacy. "In hard cases don’t both sides usually have a pretty persuasive story about how deciding in their favor would advance the social good?” he asks. “In criminal cases, for example, we often hear arguments from the government that its view would promote public security or finality. Meanwhile, the defense often tells us that its view would promote personal liberty or procedural fairness. How is a judge supposed to weigh or rank these radically different social goods?”
This echoes an influential argument by the legal philosopher Joseph Raz for the proposition that some values are simply incommensurable, and can’t be weighed against each other — which, if true, Gorsuch argues has major implications for the law. Of course, the counterargument here is that in claiming to not consider the social consequences of a ruling, textualists like Gorsuch tend in practice to arrive at decisions that produce conservative outcomes, suggesting the approach isn’t as neutral and non-ideological as its proponents present it as being.
Gorsuch’s speech doesn’t stake out clear positions on hot-button topics. But it is worth a read to get a sense of his overall philosophical standpoint on the role of judges.