PROVO — The members of the U.S. Supreme Court should interpret the Constitution based on the original intent of the Founding Fathers so that nine justices don’t rule the nation, one of the court’s own, Justice Neil Gorsuch, told a capacity crowd at Brigham Young University on Friday night.
“Nine people in Washington should not govern a continental country of 330 million people,” said Gorsuch, who added that he is the first justice to be confirmed after testifying to being an originalist in front of the Senate Judiciary Committee.
Gorsuch joked that living constitutionalists have a better name, but he said originalists offer a better long-term future for American democracy.
“I worry some living constitutionalists will take your rights away,” he said. “I want an enduring Constitution.”
Gorsuch pleaded for civility and expressed deep concern about the deterioration of American civic education and its impact on millennials during a conversational question-and-answer discussion with Judge Carolyn McHugh, a member of the 10th U.S. Circuit Court of Appeals in Denver. Gorsuch served there with McHugh until he was confirmed to the Supreme Court in April 2017.
Gorsuch said that conventional wisdom that the Supreme Court is split along partisan lines based on the political views of the president that appointed each justice is false.
“Rubbish,” he said.
The justice is on a book tour hawking his recently released “A Republic, If You Can Keep It,” quote attributed to Benjamin Franklin. He has made similar remarks in recent interviews with CNN and Fox News and at a stop Thursday night at the LBJ Presidential Library in Austin, Texas.
He said he decided to write the book during the confirmation process when he saw that many Americans see the justices as merely politicians in cheap robes. Instead, he said, the robes signify adopting a quiet mind, talking less and listening more.
In fact, he held up the courts, especially the Supreme Court, as models of civility where justices shake hands before every hearing and eat lunch together regularly during the term.
Gorsuch, appointed to the 10th Circuit by George W. Bush, and McHugh, appointed by Obama, said they ruled on 88 cases together on the 10th Circuit Court and ruled differently twice.
The Supreme Court’s cases are the toughest in the nation, Gorsuch said, because they only arrive after other judges have disagreed. Still, he said, the reality is the court is friendly and that data shows broad agreement on the court.
For example, the Supreme Court’s justices rule unanimously in 40% of the 70 cases they hear in a term, which runs from October to May.
“We do that through a lot of civility, hard work, civics and understanding our roles,” Gorsuch said.
The highly publicized 5-4 decisions happen 25% to 33% of the time, but they are not homogeneously political. Last year, the court had 10 different combinations of 5-4 votes.
“It’s been the same percentage since 1945,” he said. “The only thing that’s changed is nothing has changed. And in 1945, eight of the nine justices had been appointed by Franklin D. Roosevelt. If we’re able to agree as well as they did, I’d say we’re doing all right.”
Gorsuch, in fact, has been praised for sometimes siding with the four “liberal” justices on the court while maintaining his reputation as a libertarian, conservative, originalist justice.
He worried Friday night about the loss of civic-mindedness in America’s young people.
“What really worries me is when I read that only about one-third of millennials think it’s important to live in a democracy,” Gorsuch said to McHugh, a University of Utah graduate, as they sat in blue leather chairs on the stage in front of 800 people in the full Joseph Smith Building auditorium.
Gorsuch said young people tell him they feel like citizens of the world.
“I tell them if you mean you recognize the dignity and worth of all people, I’m all in,” he said. “If you mean that there is nothing special about the Constitution, the rule of law, this special gift you’ve been given, think again.”
The Orrin G. Hatch Foundation co-sponsored the event with the Washington Times, which provided each attendee with a free, signed copy of Gorsuch’s book.
Former Utah Sen. Orrin Hatch attended and presented a short video in which he called civility “the indispensable political norm.”
Gorsuch was introduced by President Dallin H. Oaks, first counselor in the First Presidency of The Church of Jesus Christ of Latter-day Saints, who is a former U.S. Supreme Court law clerk and former Utah Supreme Court justice.
“A lack of civility degrades our institutions,” said President Oaks, who noted that it is a basic tenet of Christianity and quoted a Christian Science Monitor editorial.
Sen. Mike Lee, R-Utah, attended the event, as did Elder D. Todd Christofferson of the Quorum of the Twelve Apostles.
Homeless advocate Pamela Atkinson, an elder in the First Presbyterian Church, provided the opening prayer and A. Scott Anderson, president and CEO of Zions Bank added closing remarks in which he praised Gorsuch and called his warnings about civility and the state of civic education “frightening.”
After Gorsuch called the Constitution a great inheritance, the envy of the world and a miracle during his presentation, the justice asked the audience to exercise civility while they advocate for it.
“Good people, kind people,” he said. “Please step forward.”