WASHINGTON • U.S. Supreme Court Justice Neil Gorsuch is firing back at the critics of his judicial philosophy, some of whom sit alongside the Coloradan on the Supreme Court, who believe the Constitution should be interpreted differently in the modern era.
Since the former Denver-based 10th Circuit Court of Appeals judge joined the Supreme Court in 2017, when he was nominated by President Trump and confirmed by the Senate by a 54-45 vote, he has positioned himself as a bulwark against what he says is "nine older people sitting in Washington making stuff up.”
"When that happens, your rights get diminished and the Constitution gets amended in ways you never agreed to," he told the Washington Examiner during an interview in his chambers at the Supreme Court, which once belonged to the late Justice Antonin Scalia.
Gorsuch, like Scalia before him, believes the Constitution should be interpreted as to its text and original public meaning and argues the originalist approach ensures the rights of the American people are not lost and that unfounded changes are not made.
He added: "Your rights get lost when you depart from the original meaning. And then sometimes, wait, it gets worse. Not only does it take stuff away, it puts stuff in there that isn't."
What Gorsuch, 52, believes is the best approach to interpreting the Constitution and laws, as well as the proper role of judges, are central themes of Gorsuch's new book, "A Republic, If You Can Keep It," published by Crown. A collection of essays, speeches, and judicial opinions, the book was born of the confirmation process, during which he realized some perceive judges to be like politicians, he writes.
Gorsuch made no mention of Trump, who tapped him for the high court following Scalia's death the year before, kicking off a bitter fight over the seat as Republicans held it open to allow the next president to nominate a successor.
"Anything that touches on politics," he said, "I'm not here to touch."
But he did make an impassioned plea for "civility" that could be seen by some as a veiled shot at Trump, who even his supporters would concede adopts a brutish coarseness, often via Twitter, to communicate.
"People can make fun of civility. They say it's a bad word, even. When did civility become a bad word? When did kindness become a bad word? I tell young people though: Be brave. Somebody's got to run the zoo. Somebody's got to run this place. And we need good young people to come forward, and I like to tell them that tweets don't hurt, OK? Be courageous, step forward."
The justice said that the modern-day Senate confirmation process, with considerable understatement, was "surely a little different" than in years past. Scalia, he noted, smoked a pipe during his hearing and was confirmed unanimously. The confirmation hearing for Justice Byron White, another Coloradan for whom Gorsuch clerked, lasted 95 minutes.
Gorsuch experienced the shift. His hearing in 2006 when he was nominated to the 10th U.S. Circuit Court of Appeals, a position for which he had the backing of Colorado’s two home-state senators, lasted less than 20 minutes. He was later confirmed by voice vote in the Senate.
While Gorsuch's Supreme Court confirmation was contentious, it never plumbed the depths of anger and controversy that the Brett Kavanaugh hearings reached last year.
Now more than two years into his tenure on the Supreme Court, Gorsuch said trading his life as a judge on the 10th Circuit for one as a member of the nation’s highest court in Washington wasn’t easy.
“I was just a judge living a very happy and quiet life in Colorado, very happy and very quiet, when I was plucked out of this and thrown into that,” Gorsuch said. “And for a while I grieved. I did.”
Even amid the political rancor, Gorsuch said the confirmation process left him with a “great gift,” as he witnessed the “great reservoir of goodness in America.”
The Supreme Court is poised to begin a blockbuster term Oct. 7, during which the justices will hear cases involving immigration, LGBT rights, and the Second Amendment, at least for now. And the Trump administration has with increasing frequency asked the justices to allow it to enforce policies including the travel ban and a prohibition on transgender individuals in the military before the federal courts of appeals rule, a trend some believe shows Trump views the court, now with a solid conservative majority, as a backstop.
But Gorsuch said the Supreme Court has “always had to face hard questions,” citing Plessy v. Ferguson, Marbury v. Madison, and Korematsu v. United States, which allowed the internment of Japanese Americans during World War II.
“We should all have sufficient humility about our own branch, our own business. There’s room for improvement,” he said, adding that in today’s media culture, “conflict and clickbait are definitely part of our contemporary culture.”
Gorsuch also raised concerns about the dangers of independent judges relinquishing their power to the executive branch, as well as Congress delegating its lawmaking authority to independent judges.
“Our job is to make sure this amazing Constitution and the laws that other people have adopted, not us, they’re not ours, we’re just custodians,” he said. “We’re keepers of that.”