Reviewed by Ed Lengel
Neil M. Gorsuch, an Associate Justice of the Supreme Court, appointed by President Donald Trump in 2017 to replace the late Antonin Scalia, has been identified—and excoriated—as a bastion of the Court’s conservative majority. But the political label is one that Gorsuch would renounce. Far from representing the Republican or any other partisan worldview, Gorsuch considers himself an advocate of, respectively, originalism, textualism, and above all the separation of powers (executive, legislative, and judicial) established in the United States Constitution. Such are the positions that he puts forward forcefully in A Republic, If You Can Keep It.
Gorsuch inherited his belief in originalism and textualism from his predecessor, whose lecture, “The Rule of Law as a Law of Rules” profoundly influenced generations of young lawyers following its initial publication in 1989. “An originalist judge,” as Gorsuch succinctly puts it in echoing Scalia’s words, “seeks to enforce the original meaning of our nation’s supreme statute”—the Constitution. Meanwhile, “a judge faithful to textualism seeks to enforce a statute’s ordinary meaning at the time of its enactment.” The two approaches are complementary and, as Gorsuch admits, possibly “little more than different ways to say the same thing.” Both, however, run counter to what has until relatively recently been the more commonly received opinion: that judges should interpret statutes, including the Constitution, as “living” documents that should evolve in keeping with changing social and political standards. For Gorsuch and like-minded legal thinkers, this amounts to a “fad” presenting “the Judge as Greek Hero or the Judge as Pragmatic Social Engineer.” In its worst form, it leads to efforts to legislate from the bench, blurring the separation of powers as laid out in the Constitution and thus threatening the foundations of the American system of democracy.
Underlining the separation of powers—or checks and balances—is Gorsuch’s central purpose in A Republic, If You Can Keep It. And the subject has never been more relevant than it is today. As he points out, temptations to skew the constitutional balance in one direction or another—in favor of the executive, the legislative, or the judiciary—have existed since the founding, and have at times come close to inflicting permanent damage on the United States and its government. The stakes are high. Established to overturn and hereafter prevent tyranny, the Constitution walks an eternal tightrope. In turn, Gorsuch lays out historical and contemporary instances in which one branch or another has sought to arrogate—or, ironically, surrendered—authority, causing the tightrope to sway dangerously before balance has been restored.
Alexander Hamilton recognized that the judiciary, in its place, presents probably the smallest threat to democracy. But this is dependent on the Supreme Court justices’ willingness to maintain their roles in interpreting, rather than defining, the law. As Gorsuch points out in a number of case studies, efforts to legislate from the bench in the name of giving life to the Constitution have threatened to rob the people’s representatives of their proper role in formulating the laws of the land, and to place dangerous power in the hands of an unelected judicial elite. Such is the danger every time one interest group or another turns to the Supreme Court as a means of securing political agendas. From being the smallest threat to democracy in a balanced system of government, the judiciary becomes the greatest. And those with the most to lose in such a situation are precisely those who have often advocated handing over additional powers to the judicial branch—political and other minorities.
Conversely, though, the dangers are perhaps equally great, as promoters of “court packing” seek to subvert the independent judiciary and place it at the beck and call of the legislative and/or the executive. Once the step is taken, the Constitution is irreparably harmed. And over the long term, again, those with the most to lose will be minorities, which will become subject the shifting tides of popular bigotry and intolerance. The republic will exist, in the words of Benjamin Franklin that form the book’s title, only so long as the people can keep it.
Gorsuch is nothing if not intelligent and articulate. Unfortunately, A Republic, If You Can Keep It, fails as a vehicle for his legal scholarship. Except in parts, this is no work for the general reader, who would do best reading the introduction and then browsing through the rest. Constructed out of a hodgepodge of previously written speeches, academic articles, and legal opinions, with some new introductory text, the book bogs down at times in legal minutiae, and at other times becomes annoying disjointed and repetitive. Sadly, one can only conclude that this work was a rush job, slapped together out of disparate parts on short notice so that the publisher, and presumably the author, could capitalize on Gorsuch’s celebrity. Important as the subject is, it deserves better, and particularly more accessible treatment.
Ed Lengel is an author, a speaker, and a storyteller.