Orig­i­nal in­tent

Jus­tice Gor­such book touts Scalia’s views and ci­vil­ity in the Trump era

The Jerusalem Post - The Jerusalem Post Magazine - - BOOKS - • DAVID G. SAV­AGE

Thirty years ago, Neil Gor­such was in his first year at Har­vard Law School when for­mer jus­tice An­tonin Scalia, then new to the Supreme Court, came to lec­ture. “It was a breath of fresh air, in­spir­ing, like lit­tle I had heard in my classes,” Gor­such writes in a new book. “We were told [in classes that] the Con­sti­tu­tion is a ‘liv­ing’ doc­u­ment,” and judges were sup­posed to de­cide cases by up­dat­ing the law to re­flect the more en­light­ened views of to­day, he re­called.

But Scalia re­jected that view and ar­gued judges should not act as politi­cians by chang­ing the law in the guise of in­ter­pret­ing it.

Gor­such said he was ul­ti­mately won over by Scalia’s views rather than those of the Har­vard fac­ulty.

Two years ago, Pres­i­dent Don­ald Trump ap­pointed Gor­such to the seat left va­cant by Scalia’s death. And now at age 52, Gor­such is the youngest mem­ber of the high court.

This week, he is pub­lish­ing a 323-page book of es­says and ar­ti­cles that set out his views on the role of judges, the im­por­tance of ci­vil­ity and ethics, and the right – and wrong – way to de­cide cases.

Above all, he makes clear he is com­mit­ted to Scalia’s view that the jus­tices should rely on the “orig­i­nal mean­ing” of the words in the Con­sti­tu­tion and in fed­eral laws when de­cid­ing cases. They should not act as “so­cial en­gi­neers” or re­form­ers.

“I came to re­al­ize that when judges aban­don the orig­i­nal mean­ing of a law to pur­sue some other goal they find wor­thy, they risk ex­er­cis­ing po­lit­i­cal will rather than le­gal judg­ment,” he writes.

Like Scalia, Gor­such seems determined to be heard be­yond the court. Over his nearly 30-year ca­reer, Scalia be­came a con­ser­va­tive icon and had a pow­er­ful in­flu­ence on le­gal think­ing. He wrote sharply worded opin­ions and dis­sents, and he trav­eled reg­u­larly to speak at col­leges and law schools.

Gor­such writes clear opin­ions that are easy to read, but with­out the sar­cas­tic jabs and scorn­ful put-downs that were char­ac­ter­is­tic of Scalia. His tone is earnest and ide­al­is­tic – in the court­room and in his book – and he frets about the decline of ci­vil­ity in pub­lic life.

“To be wor­thy of our free­doms, we all have to adopt cer­tain civil habits that en­able oth­ers to en­joy them too,” he writes. “That means tol­er­at­ing those who don’t agree with us or whose ideas up­set us... and lis­ten­ing and en­gag­ing with the mer­its of their ideas rather than dis­miss­ing them be­cause of our own pre­con­cep­tions .... In a very real way, self-gov­er­nance turns on our treat­ing each other as equals – as per­sons, with the cour­tesy and re­spect each per­son de­serves – even when we vig­or­ously dis­agree.”

He makes no men­tion of Trump, ex­cept to thank him for be­ing gra­cious to him and his wife at the time of his nomination. Gor­such also steers clear of the most dis­puted is­sues be­fore the court, such as abor­tion, gay rights and gun rights.

In re­cent years, other jus­tices have pub­lished mem­oirs about their early years: Clarence Thomas on grow­ing up in poverty in Ge­or­gia in My Grand­fa­ther’s Son; So­nia So­tomayor on grow­ing up in a Puerto Ri­can fam­ily in the Bronx in My Beloved World; and be­fore that, San­dra Day O’Con­nor on grow­ing up on a cat­tle ranch in the desert South­west in Lazy B. In 2016, Jus­tice Ruth Bader Gins­burg pub­lished My Own Words, a col­lec­tion of speeches, ar­ti­cles and trib­utes she de­liv­ered over her long ca­reer.

Gor­such’s book, A Re­pub­lic, If You Can Keep It, in­cludes speeches and ar­ti­cles, but he fo­cuses on cur­rent le­gal de­bates and the work of the court, reprint­ing por­tions of his opin­ions. The title is a ref­er­ence to Ben­jamin Franklin’s com­ment upon leav­ing the Con­sti­tu­tional Con­ven­tion.

The strong­est words in Gor­such’s book come in his de­fense of “orig­i­nal­ism” against the charge that it is a sham and a for­mula for con­ser­va­tive rul­ings. “Rub­bish. Orig­i­nal­ism is a the­ory fo­cused on process, not on sub­stance. It is not ‘Con­ser­va­tive’ with a big C fo­cused on pol­i­tics. It is con­ser­va­tive in the small c sense that it seeks to con­serve the mean­ing of the Con­sti­tu­tion as it was writ­ten,” he writes.

In an in­ter­view, Gor­such ac­knowl­edged that schol­ars and his­to­ri­ans, like the jus­tices, of­ten dis­agree about the mean­ing of the Con­sti­tu­tion’s words and phrases. In 2008, for ex­am­ple, the jus­tices split 5-4 on the mean­ing of the 2nd Amend­ment. Scalia, for the ma­jor­ity, said English and early Amer­i­can his­tory made clear that the right to “bear arms” meant in­di­vid­u­als had a right to keep firearms for the de­fense of them­selves and their com­mu­nity. Jus­tice John Paul Stevens in dis­sent said James Madi­son, the spon­sor for the Bill of Rights, viewed the 2nd Amend­ment as pre­serv­ing a state’s right to main­tain a “well-reg­u­lated mili­tia.”

There is “of­ten not a sin­gle right an­swer,” Gor­such said. “It re­quires judg­ment.” But he said the jus­tices should start with the best un­der­stand­ing of the Con­sti­tu­tion’s words.

Gor­such said he came to know Scalia bet­ter when the jus­tice came to Colorado and they went fly fish­ing. “I soon came to learn that, while we might hold sim­i­lar views on judg­ing, Jus­tice Scalia and I had very dif­fer­ent views about fish­ing.”

Gor­such said he sug­gested gen­tly “un­furl­ing a line in the di­rec­tion of a ris­ing trout. Jus­tice Scalia pre­ferred an­other ap­proach: lash­ing the stream with the en­thu­si­asm of a son of Queens. When I pointed to a spot likely to har­bor trout, he would storm over in his waders, look around, and then ex­claim, ‘But you said there would be fish here!’ As in­deed there had been.”

(Jim Young/Reuters)

US SUPREME Court As­so­ciate Jus­tice Neil Gor­such at the Supreme Court in Washington, Novem­ber 2018.

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