The Importance of Civics With Justice Neil Gorsuch
24:00 Share

It's time to take the quiz. Five questions, five minutes a day, five days a week. Take the quiz every weekday at thequiz.fox and then listen to the quiz podcast to find out how you did. Play, share, and of course listen to the quiz at thequiz.fox. It's Live in the Breen with host of Fox News at Night, Shannon Breen. All right gang, I'm not gonna lie, this week on Live in the Breen you are getting a special treat because we have got

Supreme Court Justice Neil Gorsuch. First of all, welcome. Great to have you. It's lovely to be here, Shannon. Let me have you pronounce your last name because I will have you know the press corps has fought over the proper emphasis on the right syllable for your last name. I've answered it a lot worse than anything the press corps has called me and anything you want to call me is fine. Okay, so if I say Gorsuch...

Close enough? That's lovely. Okay. You've got a new book out, A Republic If You Can Keep It. So let's just start there. A lot of people may know that phrase, but explain where that came from and why you decided to title your book that. Well, so Ben Franklin, when he was leaving the Constitutional Convention, was reportedly asked, what kind of government are you all creating for us in there? And he reportedly said, a republic, if you can keep it.

And I think that's something that every generation needs to be reminded of, remind ourselves, that a republic is up to us to keep. And the first three words of the Constitution are we the people, not we the states, not we the bureaucrats, not we the Congress, we the people. And a republic requires certain special preconditions to survive. The truth is most republics haven't survived very long in the course of history. They flickered brightly and disappeared quickly.

Jefferson said, I think I've got it about right, that if you think that a republic, a democracy, can survive with an ignorant people, you want something that has never happened in the history of mankind and will never happen.

And you worry about that. I mean, you write in the book about some things that sort of branch off from each other, but they're really at the core of the book, why you wrote it. You talk about civics and you talk about civility. So let's touch on the first one there, the importance of understanding what we have as a country and the fact that we need to have an educational base if we're going to sustain it. Well, we used to teach civics in school, and that's largely gone. And that makes me very worried when kids don't know the three branches of government.

when a lot of people think Judge Judy is a Supreme Court justice. We talked about this earlier. Can't name the presidents of the state capitals. Don't know our history. And maybe even think it's not important. As we discussed, 30% of millennials say it's not important. Only 30% of millennials apparently say it's important to live in a democracy. Those things are deeply concerning.

So I do write about those. I talk about those. I used to teach. I still try to teach a little bit about those when I can, sometimes with a colleague or two. Justice Sotomayor and I have gone to fifth-grade classes to talk about civics. And I just think it's terribly important to inspire young people to realize that this country is very special in the history of mankind. It's one of the longest-lived republics, first with a written constitution,

and is a force for good in our world.

if they can keep it. And it's quite a balancing act. I mean, the branches all have their very specifically enumerated powers and limitations. But I know a lot of people are worried about crossover where judges become legislators, administrative, you know, appointed unelected people become people that can meet out judicial decisions. I mean, there's a lot of crossover. And if people don't understand that,

what each branch is supposed to be doing, they may get mad when a judge doesn't do what they think they should do. Well, I think that's very important. Sometimes people would say to me, how could you rule this way? It's unfair. And I might agree with them. And there are plenty of decisions where I go home at night and think, that's a terribly sad result. But it's won the law that the people's representatives chose to adopt.

And it's my job not to change the law, to make it better in my eyes, but to enforce the laws that they, we the people, approved. And the minute I start making it up, you've lost your republic. Do you really want me to make things up? I don't even think my children want that.

Well, if you talk about the man you replaced, Justice Antonin Scalia, late justice, about how he sort of influenced for you and modeled for you the way to tackle these things as a jurist. Well, when I was in law school, nobody talked about these things. A judge should just make it up and fix the law and make it better.

And he reminded us that a judge's job isn't to replace the legislature or the executive branch. A judge's job is to be neutral and fair to every person who comes before them. And sometimes a judge will immediately know three things, as we've discussed. One, this is a very stupid law. It's a stupid law. But second, it's a constitutional law, and I have to enforce it. And third, when I do enforce it, this stupid but constitutional law, everybody who is not a lawyer is going to think I'm stupid too.

that's the job I've taken. And that's why you have unelected judges who can enforce the law equally without respect to persons. All people equally come before the court of law. That's why Lady Justice is blindfolded when she's portrayed in our court and many others across the country. And the minute you take off that blindfold, that's not a fair judge. Because what happens when you're the unpopular person? The law's in your favor. The facts are in your favor.

You want a judge who's capable of standing up and not caring what the majority thinks and enforcing the law fairly in that case. And each of us has to worry about that day when we stand alone before a court of law.

And federal judges, unlike legislators, if the people aren't happy with what they've done, you boot them out in the next election. You all are supposed to be insulated from that. That's right. And that makes perfect sense if you want somebody who's going to apply the law fairly and neutrally to all cases. That's exactly who you'd hire. You'd hire nine older people who don't care what anybody else thinks, who are insulated from all pressures to be able to enforce your rights, no matter how unpopular or

You might be at that time. That's exactly who you'd hire for the job. They're the last people you'd hire to write new laws to govern a country of 330 million people. That's someone else's. That's a different branch's job. That's a different branch's job. Now, all of this is couched in the conversation as well about civility. Yes. And, I mean, we're certainly at a point in our country where things feel very divided, very heated. How do we or do you see a way that we can repair that situation?

Shannon, this really worries me because we used to teach civility too. Civics and civility share the same Latin root and both are essential to civilization. Tony Kennedy taught me that. I think that's exactly right. And George Washington, when he was a young man, had to copy out the rules of civility. That was part of his education.

a document created by the Jesuits back in 1595. And there's some pretty great rules in there. I think it's number 84, for example. It says, do not approach your opponent so closely that you would do him with your spill. That rule. I like that rule. It's a good rule. That's a good rule. But maybe we can have some more modern rules. I have a couple in the book from Mother Teresa that I think would do just fine.

But the bottom line of all of it, I think, is two things. One, we should all remember that the people we disagree with love this country every bit as much as we do. And they want the best for it, too.

And it's okay to disagree. That's what makes a democracy strong, is that we are able to bring the best of all ideas to the table and select among them. It's not a monarchy or a plutocracy where only a few ruling elite have control. We take advantage of everybody's ideas. We have to remember the person we're debating and discussing with loves this country. And second, and this is just the simplest rule of all,

I think it's one, one Louisa's grandmother reminds me of her memory. She used to say it often. That is, you're going to have many regrets in life, many regrets, things said, things you do, things you didn't say, wish you had regrets.

Things you left undone. But the one thing you will never regret in life is being kind. So true. It goes a long way. I think people are almost caught off guard by it sometimes today. They really are. Like, what's your angle? Why are you letting me out in traffic? Why are you letting me go first in the grocery line? I mean, people, it almost in some places has become a foreign concept. I'm very worried about it.

I'm happy to report that the courts of the United States are places where civility, collegiality, and kindness still reign.

And you share so many great personal stories in the book, along with educating people about our system. I want to talk a little bit about your confirmation process and a little girl that you met on a plane and you hit some turbulence. You were already going through some turbulence more broadly, just in going through this process that our confirmation process has now become. But tell us about that little girl. So I was going back and forth.

from my home in Colorado to D.C. to meet senators, a lot of senators. And I had lost my anonymity completely at that point. Everybody recognized me everywhere. And it was a very disconcerting moment for me. I had lived, I had a good reputation in the legal community, but was largely unknown outside of it. And that had suited me down to the ground. And this was a moment on an airplane where I was anonymous again for just a moment.

And I was seated next to a young lady, I don't know, maybe five years old. And her mother was behind us for whatever reason. I'm in the middle seat, I believe, and she's got the aisle. And we start hitting some bumps and she says, leans over to me, would you mind holding my hand? Precious. And so we held hands for a half an hour through the turbulence. And afterwards she asked if I would like to color with her. So we spent the rest of the way coloring in her coloring book.

She didn't have a clue who I was, didn't would have cared less if she did. And that moment for me was just a reminder of the kindness and the loveliness of the American people. And you guys stayed in touch. We did. A little bit from there. We did. We got off the plane. The mother figured out who the heck I was. Who's this guy been holding my six-year-old daughter's hand? Right, right. And so I got in the mail a few weeks later, a little thank you note from the young lady.

with a picture that she had drawn of the two of us, two stick figures, standing outside an airplane holding hands. I love that. Please tell me you still have it. Of course I do. It's in my office. I want to think about something else that's in your office, too. Someone, something named Leroy. Leroy. You want the story of Leroy? I love the story of Leroy. You want the whole story of Leroy? He's great, yeah. Okay, all right. So my predecessor was a big hunter, as you know.

And he was out here in Colorado, not too far from where we are right now, hunting with one of my friends and one of his former law clerks. And he shot one of the largest elk I have ever seen. He's huge, and he named him Leroy. And the law clerk, as a gift, had him stuff-mounted and shipped to Washington, D.C. And he hung in the justice's office until he passed. And the justice loved Leroy.

But when the justice passed, Maureen, Scalia's wife, offered a little memento to anybody out of the chambers that they wanted, the children, the law clerks, colleagues. Nobody wanted Leroy. And she was not going to have him in the House. So she called up the former law clerk who was responsible for him and said, you're getting him back.

And she had the Supreme Court carpenters build a box to ship him back. It weighed 435 pounds. I have that on good authority. They made it out of some extraordinary oak or something, I don't know, but shipped it back again at this poor law clerk's expense. And it sat in his garage. And his car was outside as a result. He was really unhappy about this. Yeah, he took over the garage. I mean, it was a huge crate. Yeah.

And so we're in the summer of 2016, and this fellow, we're having lunch, and he's a dear friend. He says, you know, Neil, Trump wins, and you get the nomination. I want to give you Leroy. I think it would be great. The old man would be happy about that. And I'll be honest, I discounted both of those things to zero, less than zero in the second one. And so I said sure. Six months later, I get a phone call from Mrs. Scalia asking if I would be her date.

for the first Scalia law clerk reunion after his passing. And, of course, I accepted. And about halfway through an otherwise very nice dinner, this fellow, this friend of mine, this law clerk, former law clerk, comes rolling out a giant crate with this Cheshire grin on his face. Surprise! Surprise! And Mrs. Scalia presented me with Leroy the Elk, who has now returned to the Supreme Court, his third cross-country trip at this poor law clerk's expense.

And he now sits in my office, and I think it makes a whole lot of sense that the two of us should share time together. We share three things in common. One, we're both native Coloradans. Second, we're going to have to spend the rest of our time on display in the Supreme Court of the United States. And third, neither of us is ever going to forget Justice Scalia. Well, we're glad Leroy is there with you.

Keeping you company and keeping that memory alive. Tell us a little bit about what it's like there behind the scenes, because you and I have talked about the fact that if you don't really follow the court closely, you think every decision is a 5-4 out of there. But that's just not the case. This is part of the civics and civility discussion and understanding our courts and what judging is. There are about 50 million cases filed in the United States every year.

That doesn't count your traffic tickets. That's another 50 million, you guys, all right? We don't know anything about those. I'm just not concluding those. All right, 50 million cases, more or less, in the United States. A lot of litigation in this country. In the federal system, about 95% of those are resolved unanimously. And I served on the Tenth Circuit with judges appointed by President Obama all the way back to President Lyndon Baines Johnson.

From six states over two time zones covering 20% of the continental United States, we reached unanimity 95% of the time in those cases. All right? And only about 5% are even appealed. Most people accept the judgment of the trial court as reasonably just without any appeal at all in this country. So 5% to appeal, 95% unanimous in courts of appeals. The Supreme Court of the United States takes 70 cases a year.

That's it, out of those 50 million. And those are 70 cases where the lower courts have disagreed. That's why we take the case, because the law in one part of the country can't be different than the law in another part of the country. 70 cases where there's endemic disagreement, and we have nine judges appointed by five different presidents over about a 30-year period, and a healthy percentage of them from around the New York area. But that's another question. So among those 70 cases...

I don't think most people realize that we're able to reach a unanimous decision about 40% of the time. 40%. That doesn't happen magically. That happens through mutual respect, careful deliberation, civility, collegiality, and kindness. That's how that happens. Ask nine people where to go to lunch. Try and get them to agree. Forget it. Forget it. So that to me is magical. It's a wonder of the world.

And it's a testament to the stability of the rule of law in this country. And nobody knows it.

I see it firsthand. And I see so many of your colleagues, you all may be ideologically opposed on how you interpret the Constitution or any number of things, but publicly, and I'm sure privately, there's always a kindness and respect when they're asked about their other colleagues. There's always something positive that's said. I mean, we've seen this recently with Justice Ginsburg talking about you and Justice Kavanaugh, the newest members of the court.

and just having kind things to say and being able to find a way to respect and work together. It's very real, and for some reason nobody believes it. That's been a mystery to me because I've been in the judiciary a long time, and I've been a lawyer a long time, and that is part of our culture, and it's who these people are, not just these nine, but these thousand federal judges. It's the same story.

There's great affection among my colleagues across the country and in our court. And I can give you some fun examples if you want. I would love that. Oh, well, all right. You guys have lunch together a lot. I mean, you spend a lot of time together. That's what people don't realize. We spend hours in conference together every week, hours in the courtroom together every week. We have lunch together.

We have dinners together. We dine in one another's homes and at restaurants together. We go on trips together. I've been on trips with Justice Alito, Justice Ginsburg, and...

And we've all done these things. So I'm mystified when people think that just because we disagree about how to read a really gnarly statute with a run-on sentence that every grammar teacher would give an F. Not enough commas. Not enough commas or whatever. They would think that that means we don't like each other. Or that we disagree on a hard question of constitutional law that has

confused and caused debate in the country for years that we might disagree on that hard question. We don't like one another. I just don't understand that. Justice Breyer, I love. He's a good storyteller. He is a great storyteller and an endless source of knock-knock jokes. Yes. And they're horrible. And he shares them with us at lunch on a regular basis. Yes. So you ask what we talk about at lunch. Steve Breyer tells knock-knock jokes. Um,

So Steve and I, we wrote one of these five, four opinions. You guys, you like to latch on to those. This one involved the Railroad Tax Retirement Act of 1938, I think. I could be wrong about that. Don't quote me. And I wrote what I would call a textualist opinion. What do the words mean?

And Steve wrote what he would call a purposivist opinion. What was the purpose, the hidden, the latent purpose behind the statute? And he came to me and he said, Neil, this is going to be great. I'm going to write the best purposivist opinion ever in this case, and you're going to write a perfectly good textualist opinion. Perfectly good. Yeah.

Oh, I'm exaggerating. He meant excellent. And it's going to be put in every textbook in law school to teach the two schools of interpretive thought and it'll be wonderful. And

And I had to look at him and I said, Steve, the only thing that's going to get reported is this is 5-4 and everyone else is going to forget everything else about this case and nobody's ever going to pay any attention to it. I'm afraid I was right. That's always the headline. That's always the headline. I want to ask you, too, about when you're the chief. We had so much fun doing it together. I mean, that's what. Right. It was a joy to work together. No, it was more than collegial. It was a joy. Right.

Well, we all should wish for that with our coworkers. Okay, so as the junior justice, you get assigned to do some things that not everybody loves, some people love, but part of that first year is being a representative on the cafeteria committee. Now, Justice Kagan got us frozen yogurt. Yes, she did. With toppings. With toppings. Which we love. What was your contribution to the cafeteria committee?

Shannon, you know, you've struck a blow to my heart. I have nothing to brag about on the cafeteria committee. My memory will be quickly forgotten in that category. The meeting I remember attending, the major topic on the agenda was a complaint by some of the officers that the meatball subs, which are otherwise excellent apparently,

The chef was forgetting to use the marinara sauce and was using the shrimp cocktail sauce. So I got that fixed. We got that fixed. Okay, well, I think that that's an accomplishment. We can credit that. Oh, here's one thing I will tell you, though. This is true. I don't think I'm speaking out of school. I got the nicest note shortly before I stepped down as representative to the cafeteria committee yesterday.

from Joanna Breyer, Mrs. Breyer. Yes. And she said that she had the best meal she had ever had in the cafeteria that last week during my tenure before I stepped out. It was probably all you. It was all me. And she said she wished she could say the same thing about her husband who had been junior justice for about 11 years on the cafeteria committee all that time, but she at last could not say that. Aww. Well, listen, he maybe overstayed his welcome on the cafeteria committee. Yeah.

So again, the book is A Republic If You Can Keep It by Justice Neil Gorsuch. It is out. It is available anywhere you can find a great book. And bottom line, what do you hope people who pick it up will learn? Well, Shannon, I think you've already summarized it very well, which is just the wonder of our country, the blessings of liberty. Our Constitution is originally drafted to give us, each and every one of us,

special inheritance we enjoy and the responsibility each and every one of us has to keep it. It is a challenge and it's inspiring as well. So Justice, thank you very much for joining us on Live in the Bream. Thank you.