Accept courts’ say, Gorsuch urges

New justice rejects cynicism about government, rule of law

CAMBRIDGE, Mass. — Justice Neil Gorsuch, in his first public remarks since joining the Supreme Court in April, spoke forcefully Friday about the importance of letting judges have the last word in assessing the constitutionality of government actions.

He did not mention particular cases, but he spoke the day after the Trump administration asked the Supreme Court to revive President Donald Trump’s travel ban, which has been blocked by lower courts as a violation of the Constitution’s protection of religious freedom. Trump responded to some of those losses by attacking the courts that had ruled against him.

In a properly functioning judicial system, Gorsuch said at an event at Harvard University, “the government can lose in its own courts and accept the judgment of those courts.”

“I know there is a lot of cynicism about government and the rule of law today,” he said, “but I don’t share it.”

Gorsuch was appointed to the Supreme Court by Trump after a long and bitter fight over the seat left vacant by the death last year of Justice Antonin Scalia. Senate Republicans refused to consider President Barack Obama’s Supreme Court pick, Judge Merrick Garland, saying that the next president should choose Scalia’s successor.

The Senate confirmed Gorsuch only after discarding rules meant to ensure bipartisan cooperation in considering Supreme Court nominees. The vote was 54-45.

The occasion for Gorsuch’s remarks was a celebration of the 70th anniversary of the Marshall Plan, the aid program through which the United States helped rebuild Western Europe after World War II. Britain responded by establishing the Marshall scholarship, which finances postgraduate studies there for young Americans.

“I owe the Marshall more than most,” said Gorsuch, who met his wife while he was studying in Britain. “I have to attribute most everything good in my life to the Marshall scholarship.”

Gorsuch’s studies at Oxford University led to a doctorate in legal philosophy and a book, The Future of Assisted Suicide and Euthanasia.

Gorsuch, 49, was interviewed with Justice Stephen Breyer, 78, another Marshall scholar. The men have other

things in common, as well: They attended Harvard Law School and served as law clerks at the Supreme Court.

Breyer, too, spoke mostly in generalities. Asked about the rise of populist movements around the world, he said, “We’ve survived quite a lot of threats.”

Like his colleague, Breyer emphasized the importance of letting the Supreme Court have the last word in settling disputes, discussing Bush v. Gore, the 2000 decision that handed the presidency to George W. Bush.

“It was wrong, in my opinion,” Breyer, who dissented, said of the ruling. But the court had spoken, he said, and the public largely accepted the decision.

“People did not go out and throw stones or shoot other people,” he said.

The justices were questioned by Jeffrey Rosen, the president of the National Constitution Center, who thanked them for appearing during “the busiest and most challenging time of the Supreme Court term.”

Gorsuch joined the Supreme Court late in the term, but his colleagues say he has thrown himself into the work.

“The first week on the job, we had 13 cases before us,” Justice Ruth Bader Ginsburg said last month in public remarks. “I can tell you he was prepared. I think he’s an excellent justice.”

Gorsuch has so far participated in one decision in an argued case, joining a majority opinion written by Ginsburg.

On Friday, Gorsuch said he had embraced the court’s customs, and he praised its collegiality. He mentioned a Supreme Court ritual: The justices shake hands before they ascend to the bench.

Gorsuch said the justices worked hard to find consensus.

“You don’t learn from talking,” he said, “and a good judge listens.”

The nine justices, appointed by six presidents in a 30-year period, issue unanimous rulings about 40 percent of the time, Gorsuch said. There is something reassuring, he added, about the work of “nine old people in polyester black robes that we have to buy at uniform supply stores.”

Gorsuch said he was occasionally asked about the burdens of his work. “‘Why would I want to go through what you go through every day?’” the questioners ask, he said. “‘Is it worth it?’”

His response: “Somebody’s got to run the zoo.”

Rosen asked Gorsuch about similarities and differences between American and English approaches to the law.

“The similarities are profound,” Gorsuch responded. “An adversarial system of justice, great respect for certain human rights. We believe in certain forms of limited government, separation of powers.”

The key difference, he said, was the American commitment to judicial review, the idea that judges may strike down laws and other government actions as unconstitutional.

“The notion of judicial review to my British friends is somewhat astonishing and very, very worrisome,” Gorsuch said. “Maybe worrisome to some here.”

Both Gorsuch and Breyer said the U.S. judicial system owes a debt of gratitude to Britain.

Gorsuch said the founding fathers were trying to preserve common law against a tyrannical king.

“Our constitution was aimed at preserving, not preventing, certain civil liberties,” he said.

He added about the justice system: “This project is worth your life. It’s your life’s work.”