The Personal Life of Judge Neil Gorsuch

How does a Supreme Court Justice’s personal life affect his ability to rule on law?

That question won’t get much airtime in this week’s Senate confirmation hearing for Judge Neil Gorsuch. That’s because the rule of law—the bedrock of meaningful political systems—insists that objective legal principles, rather than subjective human beings, must be our ultimate authority. While lawmakers and presidents have leeway to make decisions based on personal morality or politics—by doing what they think is right, or what they think will play with constituents—a hard and fast prohibition remains for judges. Judges are the last bulwark in any society governed by rule of law. They are the ones who must be objective, and who insist that our collective rules must be followed. As Chief Justice Roberts so eloquently said in his confirmation hearing over a decade ago, “I will decide every case based on the record, according to the rule of law… and I will remember that it’s my job to call balls and strikes and not to pitch or bat.”

Chief Justice Roberts’ image of the Justice as impersonal umpire has real appeal in theory. Judge Gorsuch certainly agrees with it, although he had a different sport in mind when he compared his job to an instant replay reviewer at an NFL game. While Democrats and Republicans agree that stability is found in a system run by objective rules, critics and legal realists have long argued that claims like Roberts’s hide a more cynical reality. There’s a striking concurrence— many people say—between the personal beliefs of conservative originalists and the decisions they reach through supposedly objective jurisprudence. Why is that the case? Are those judges being dishonest about the way they make decisions, or is there something more complex going on?

As Jeffery Rosen points out in an excellent article in the Atlantic, Judge Gorsuch’s principled, Jeffersonian version of originalism doesn’t always lead him to conservative decisions. Like Justice Scalia before him, Gorsuch’s objective methodology sometimes forces him to make decisions that are ‘liberal’ or permissive. Rosen thinks this might play out for him on the Supreme Court in administrative cases, if he limits presidential power more than his conservative predecessors did. Rosen’s argument lends support to the claim that Justices can be objective, that their personal lives don’t need to have significant influence on their legal opinions.

Dahlia Lithwick, in her brilliant piece arguing against Judge Gorsuch, also admits that he can be consistent in method. Lithwick shows how Judge Gorsuch has long sided with religious freedom, even when the religion in question does not concur with his personal values as an observant Catholic/Episcopalian (Wait… both at once? Well, yeah… it’s a long story.…). While she attacks Gorsuch’s fierce adherence to protecting religious freedom at all times, even in situations when those freedoms come into direct conflict with secular peoples’, or, on occasion, with the scientific facts, she does not attack the consistency of his principle. She agrees that he can follow an objective rule, and that he does his best not to waver.

Neither Rosen’s nor Lithwick’s arguments examine the many ways that judges personal opinions affect not only their moral beliefs but also their methodologies. That’s likely because such examinations are speculative, and nearly impossible to confirm. But the personal lives of Supreme Court Justices affect everything about their thinking and decision-making. The forces that influence their private lives—schools, religions, their families’ values and choices—also determine the principles that guide their intellectual work. While a great Justice might indeed be able to think objectively about cases, and to let the rule of law guide their decisions, it is impossible for any human being to be entirely objective about their world-view. That is true for everyone; judges are no different. The Justice’s subjective world-view is the elephant in the confirmation room. The subtle personal influences are often ignored by those who write seriously about law.

While Judge Gorsuch’s Jeffersonian originalism might be an objective system that he uses to make his decisions, only an examination of Neil Gorsuch’s personal life will reveal how and why he thinks that system is the best way to be objective. Any examination of his life will necessarily involve fundamental ethical, moral and philosophical questions. What does he thinks a person is or should be? What role should religion play in a person’s life? A society’s? What are the moral limits of a person’s rights and responsibilities when they encounter another’s? What is right and what is good? Are we ever able to be right and good? Do men and women differ from one another? What about race? And so on. Thankfully, there is no room in a Senate confirmation hearing for lawmakers to conduct a philosophy seminar with their would-be Justices. It remains the private responsibility of each Justice to rigorously examine his or her own beliefs, and to discover the ways in which their world-view influences their decision-making process at every step. That self-examination should be a required part of the job.

A great Justice is a self-aware Justice. A great Justice is one who understand she will never be able to separate her personal story from her professional decisions. She must acknowledge that hard fact, even though it goes against her necessary belief in the rule of law. In her self-examination, she must learn to balance her subjective instincts with her sworn duty to uphold the law. She must begin every case by admitting her fundamental failure to be objective, and then she must do her best to claw back from that failure. She must work her entire life to be as objective as she possibly can.

Ironically, anyone who actually admits that their personal life influences their jurisprudence gets attacked for their indiscretion. Several years ago, Justice Sotomayor admitted as much. “I would hope that a wise Latina woman with the richness of her experience would, more often than not, reach a better conclusion [than someone without that background].” Justice Sotomayor had to retreat from that statement in her confirmation hearing. She reportedly told Senators that her ‘wise Latina’ comment was “a poor choice of words.” But it wasn’t a poor choice of words at all. It was an admission of fact.

Only the rare Justice who admits her personal biases has any chance to mitigate the effects of those biases on her legal reasoning. Only the person who knows herself intimately can ever step away from herself for long enough to assess whether or not she is being objective.

It is no wonder that most Justices are incapable of that self-examination. To excel in law school and in the professional world, they have to master logic and argument, legal history, philosophy and technique, but they do not have to master themselves. Genuine self-examination works against the very skills they needed to succeed. Lawyers are instructed to be objective and impersonal. They argue both sides of a case. They must remove personal bias and uphold rule of law. The very people who succeed most in those admirable intellectual skills—the Justice Scalias of this world—are often the most clueless about their own personal biases. They have been trained to ignore personal bias. They are always the best in their classes.

And so there are several questions I want answered by would-be Justice Neil Gorsuch. Only these questions, and his ability to answer them successfully, will help me decide his worthiness to adjudicate the law. Unfortunately, these questions won’t be asked by any Senators this week.

“Please, Judge Gorsuch, describe for us your world-view in detail. What are the most important personal and professional influences in the formation of that world-view? How do you feel about it now? And how have you seen your fundamental beliefs change and develop in recent years?”