Neil Gorsuch Has a Few Thoughts About America Today

On July 31, I met with Justice Neil Gorsuch in his chambers at the Supreme Court for a wide-ranging interview about his new book, “Over Ruled: The Human Toll of Too Much Law.” His co-author, Janie Nitze, a former clerk of his, was present for the interview as well.

I didn’t get to ask every question I wanted to, but our conversation covered a lot of ground, including Gorsuch’s indictment of the regulatory state, his approach to evaluating agency expertise, the problem of mass incarceration and coercive plea bargaining, his jurisprudence holding the United States accountable for its obligations to Native Americans and his definition of originalism and the role of history in understanding the Constitution.

What follows has been lightly edited for length and clarity.

David French: So I want to start by talking about the book. It takes direct aim at the proliferation of rules, regulations and statutes that govern our lives. But I’m really intrigued by the emphasis on the human toll. Critics of the regulatory state often emphasize the economic toll of dense regulations and rules. They’ll tell you if we can smooth out the Federal Register, we could save X billions of dollars, for example. But its defenders will say, “Well, wait a minute. These regulations might create economic inefficiencies, but they actually protect people.” Your book says that’s not necessarily the case. What is the human toll?

Neil Gorsuch: Well, that’s sort of a question about why I wrote the book, David, I think. And the answer is, I’ve been a judge for about 18 years now. And I just have seen so many cases in which ordinary, hard-working, decent Americans, trying to do their best and intending no harm to anyone, just get caught up in a wall of rules or laws that they didn’t know existed.

And having sat through those cases, I wanted to know more about how that came to be, why, and more about them.

So really, the book’s a book of stories about them, of a fisherman in Florida, about monks in Louisiana, about hair braiders in Texas. And they’re cases I’ve seen or some of my colleagues have told me about, and it is not an attack at all on law or regulation. For goodness’ sake, I’m a lawyer and a judge. And some law is absolutely necessary, in order to protect our liberties and our safety.

Washington called that “ordered liberty.” But the founders also knew that too much law poses some dangers as well. James Madison talked about that in The Federalist, and he said a couple of things happen. One, you start losing your liberties. And two, it impacts different populations differently. So the moneyed and the connected can find their way through a maze of litigation and through a maze of regulation. But what about ordinary Americans?

French: Well, one way I’ve heard that described is that complexity is a subsidy for the wealthy. That complexity is a subsidy for the powerful. In other words, large corporations, well-connected individuals, wealthy individuals can navigate all of the red tape. But the ordinary American really struggles, and sometimes the ordinary American can even struggle to interpret criminal law.

This was an interesting element of the book to me and something that people who are not familiar with your jurisprudence might not know — it’s that you’ve long been a champion of the rights of criminal defendants. It struck me that some of the stories here in the book, of the way in which the complexity of criminal law has impacted people, are among the most potent in making the point. Is there a particular story about the abuse of criminal law that stands out to you as you’re reflecting back on the work?

Gorsuch: I would say Aaron Swartz’s story in the book might be one example. Here’s a young man, a young internet entrepreneur, who has a passion for public access to materials that he thinks should be in the public domain. And he downloads a bunch of old articles from JSTOR.

His lawyer says it included articles from the 1942 edition of the Journal of Botany. Now, he probably shouldn’t have done that, OK?

But JSTOR and he negotiated a solution, and they were happy. And state officials first brought criminal charges but then dropped them. Federal prosecutors nonetheless charged him with several felonies. And when he refused to plea bargain — they offered him four to six months in prison, and he didn’t think that was right — he wanted to go to trial.

What did they do?

They added a whole bunch of additional charges, which exposed him to decades in federal prison. And faced with that, he lost his money, all of his money, paying for lawyers’ fees, as everybody does when they encounter our legal system. And ultimately, he killed himself shortly before trial. And that’s part of what our system has become, that when we now have, I believe, if I remember correctly from the book, more people now serving life sentences in our prison system than we had serving any prison sentence in 1970. And today — one more little item I point out — one out of 47 Americans is subject to some form of correctional supervision (as of 2020).

French: You speak in the book about coercive plea bargaining, this process where a prosecutor will charge somebody and then agree to a much reduced sentence on the condition that they don’t take it to trial, that they go ahead and plead guilty, or sometimes when they refuse to plead guilty, they’ll add additional charges. This is something that a lot of critics of the criminal justice system have highlighted for some time. Do you see a remedy?

Gorsuch: Well, I’m a judge, and I’m going to apply the laws we the people pass. That’s my job. In the book, I just wanted to highlight to “we the people” some of the changes that I’ve seen in our law during my lifetime, and plea bargaining during my lifetime has skyrocketed. It basically didn’t exist 50 or 100 years ago, and now 97 percent or so of federal criminal charges are resolved through plea bargaining.

And I just have some questions. What do we lose in that process? We lose juries. Juries are wise, right? And they’re a check both on the executive branch and prosecutors and they’re a check on judges, too, right? And the framers really believed in juries. I mean, there it is in Article 3. There it is in the Sixth Amendment. There it is in the Seventh Amendment. They really believed in juries, and we’ve lost that.

And another thing about juries, when you lose juries: Studies show that people who sit on juries — nobody likes being called for jury service. But studies show that after jury service, people have a greater respect for the legal system, for the government, and they participate more in their local governments.

‘We’ve added so many new rules lately that we’ve gotten confused’

French: So the book also has a structural critique that I think is interesting. You discuss Congress’s role in creating the national labyrinth of laws. A lot of this labyrinth is the explosive growth of the criminal code, which are laws passed by Congress. But you also note the ways in which Congress has essentially punted its lawmaking responsibilities to executive agencies.

It has handed an immense amount of its lawmaking authority to the executive branch. And for a time before the Loper Bright decision, which overruled Chevron, it seemed as if the court had delegated some of its interpretive authority to the executive, to the point where the executive was making law by passing regulations, interpreting the laws passed by Congress and then enforcing the law, taking all three branches of government essentially upon itself.

The book seems to really square with some of the court’s more recent jurisprudence, which, as I interpret it, seems to be saying two things at once: Congress, do your job. And also, courts, do your job. In other words, defer less to the executive agencies. In the book, are we seeing the cost? Are you describing the cost of that sort of unified executive authority of lawmaking, execution and interpretation all in one large body?

Gorsuch: Well, I think I’d start with saying, during my lifetime, we’ve seen a lot of power move from the state level to the federal. Gov. Ben Nelson of Nebraska once quipped he wasn’t sure whether he was governor of a sovereign state or a branch manager for the federal government.

And 30 percent of state budgets now come from the federal government. That’s new. Again, in our lifetimes, David. OK. Now we’re talking about this move to the federal level. What do we see there? People think the Congress doesn’t do enough. Do you know how many words it adds to the federal code every year?

French: I do not.

Gorsuch: It’s about two million, according to some estimates. Two million words. One hundred years ago — well, the founding, certainly 100 years ago, too, the entire federal code could fit into one book. Today it occupies a wall in my chambers. So that’s Congress. So they’ve been busier than you think. And busier than they get credit for. All right?

And then you’re asking, “Now, well, what about, have we seen a move as well from Congress?” And so everything’s moved up, has moved over to the executive branch. And I think some, some things are worth noting there. We have maybe 5,000 federal criminal laws on the books. Nobody can be sure, because it takes so long to read them that they give up. I mean, nobody knows. That’s just in the criminal code.

How many federal regulations have criminal penalties attached to them? Estimates run as high as 300,000 federal crimes in the regulatory code. One hundred years ago, the Federal Register was 16 pages long. Today the federal government adds 60,000 to 70,000 pages to the Federal Register every year. How complicated is it? Part of the genesis for the book came in a case that I had, when I was sitting on the 10th Circuit, involved a small home health care company in Kansas. They were accused of Medicare fraud. That’s a big deal.

That’s the end of your business potentially, right? The case took six years to go through the administrative process and through the District Court and eventually to the 10th Circuit. And there my colleagues and I sat and looked at each other. And we realized that the federal government was pursuing Medicare fraud claims based on regulations that were adopted after all the conduct at issue and that the company had complied with the federal regulations then existing.

We asked the government lawyer, “Are we missing something here?” Turned out we weren’t. That’s deeply concerning — right? — when the government has so many regulations and produces them so quickly that it gets confused. Not long ago, the I.R.S. — they’ve a hotline you can call and ask questions, and reportedly they were getting answers wrong about a third of the time.

French: I saw that in the book, yes.

Gorsuch: What was their explanation? A quite understandable explanation: It’s really complicated. And we’ve added so many new rules lately that we’ve gotten confused, and I sympathize with that. But shouldn’t that tell us something or maybe ask us some questions? And I know those are dry statistics. So I try to tell some stories about people. And one of my favorites on this, if I might, is Marty Hahne, and he’s a magician.

French: Oh, I was going to ask you about the rabbit disaster plan. So please, Justice Gorsuch, tell us about the rabbit disaster plan.

Gorsuch: It illustrates some questions I have. I don’t have answers. I’m not with my libertarian friends and saying, “Everything has to go and anarchy should reign,” right? OK? But Marty Hahne, he does children’s shows, birthday shows. So he pulls the rabbit out of the hat one day, and somebody in the audience comes up to him, flashes a badge, says, “I’m from the U.S. Department of Agriculture. Do you have a license for your rabbit?” Marty says, “No, do I need a license?” And they get into a conversation. He doesn’t need a license if it’s an iguana, but he does because it’s a rabbit, and you don’t need a license if you’re going to cook the rabbit for dinner. So I could make rabbit stew in front of you, and I’d be like, “Yeah, that’s fine,” but you need a license if you’re going to exhibit.

And he definitely exhibits the rabbit. So he gets a license. He wants to comply. He’s not trying to do anything wrong. He fills out the paperwork and he does it. And he gets a follow-up from the government, saying after Hurricane Katrina, they decide everybody who exhibits animals now has to have a disaster-preparedness plan. And you have to account for everything from hurricanes, obviously, after Hurricane Katrina to chemical spills. And Marty says, he says this to an agent, “Well, I live in Missouri, and I do worry about tornadoes, and my disaster-preparedness plan is to get the family in the basement, then the dog, then the cat. If there’s time, I’ll get the rabbit.” Well, that didn’t go over very well.

French: So the rabbit was behind the cat. Well, there’s your problem.

Gorsuch: That’s the problem. The government doesn’t care about the cat and the dog, cares only about the rabbit. So he hires a disaster management expert, and they come up with a disaster-preparedness plan that’s 28 pages long. The expert is a little worried because he’s not sure that’s long enough to satisfy the federal government.

Hahne also has to submit to home inspections. And during one of the home inspections, the agent notices the cage where the rabbit’s kept doesn’t have an arrow sticker pointing “This way up.” And he says, “Well, how do you know how to carry the rabbit?” And Marty says, “Well, there’s a handle on the top, and that’s how I carry the rabbit.” He said, “No, no, you’ve got to have a sticker.” He says, “Well, where do I get the stickers?” “So I’ll send you some.” Two weeks later, 200 stickers show up in the mail.

Your tax dollars at work. So why do I tell that story? Because actually, if you look at the law, the law says circuses and zoos have to have a license, a federal license, and you might understand that. And then it says “and other animal exhibitors.” Well, how far does that reach?

And the agency had extended it through regulation to reach just about everybody, including Marty, OK? And in fact, another entity, the Hemingway Museum — and I tell their story, too, in the book — they have some cats.

French: Yes, the six-toed cats.

Gorsuch: Six-toed cats, rumored to be descendants of Ernest Hemingway’s original six-toed cat. They challenged that regulation in court and went up to the 11th Circuit Court of Appeals. And the court said: Well, we think you have a pretty good argument. This wasn’t what the law’s supposed to cover, but the agency’s got this regulation. The law is ambiguous. Their interpretation is reasonable. Chevron. You lose.

So that’s an example. Now, it’s an amusing one. It has a happy ending, right? The regulation was eventually withdrawn. But that’s the kind of human toll for ordinary Americans that I’m trying to talk about in the book.

‘You can do your psychoanalysis’

French: This next question is going to be a little bit perilous, because I’m going to try to get into your head a little bit. So there’s this old saying called Miles’s Law. It was developed as sort of a rule of bureaucracies. And it says where you stand is based on where you sit.

Gorsuch: Yeah.

French: And it’s who you are, where you come from, that dictates a lot about your outlook on life. And one thing that really stands out in the book is a lot of the stories come from the American West. You come from the American West. And why do I bring that up?

Because there’s an interesting factor about the West in that it is quite far removed from Washington, but in many ways more controlled by Washington in a tangible way than almost any other American region. I was reading a Times story, I believe from 2016, that said almost half of all lands in the West are controlled by the federal government. So here is my question. Did that background growing up in the American West, your time serving as a judge in the West, did that inform your approach to administrative law and your approach to these labyrinth of laws?

Gorsuch: David, I don’t know. I can’t put myself on the couch. I don’t know. People like to do that. I can just tell you what I’ve seen. You know, if you want another story from the American West, the Butte, Mont., story is an interesting example, maybe sort of what you’re talking about. I’m happy to talk about that if you —

French: Tell the Butte, Mont., story.

Gorsuch: Sure.

French: Because that is an important part of the book.

Gorsuch: I don’t know if this answers your question, OK?

French: Tell the story, and let’s see if it does.

Gorsuch: It’s a story from the West.

French: Right.

Gorsuch: You can do your psychoanalysis.

French: I’m happy to do it. Yes.

Gorsuch: So Butte, Mont., in the 1800s was one of the richest places in the nation. Copper was discovered there, and copper became essential to the growth of this country. All the wires for telegraphs and telephones. Bullets for World War I. It was so important, they sent Omar Bradley to guard it during World War I.

In World War II, the mine there was of such importance for national security, it was one band below the Manhattan Project. OK, times change. By the 1980s, the mine closes, and Butte becomes one of the poorest places in the nation. And by that time, it’s also realized that the copper-smelting plants there have been spewing out arsenic at an incredible rate, and it covered 300 square miles of Montana.

Huge, huge amount of land. Vast. May be difficult for people, small states to realize just how big Montana is, how big this area is. And it becomes a Superfund site, quite appropriately, and the government initiates 30-plus years of cleanup efforts. Admirable. They set the arsenic level, the cleanup levels of 250 parts per million in people’s yards and 1,000 parts per million in what they call pasture land, which is everything other than your backyard.

Where did they get those levels? The federal government determined that left an acceptable cancer risk rate. People of Butte, Mont., weren’t so sure. A lot of cities in this country will not let you put into their municipal landfills anything with over 100 parts per million. And so the people of Butte wanted to have a better cleanup for their backyards.

We’re talking about day care centers. We’re talking about children’s playgrounds. And they tried to bring suit against the company, and they also asked for permission. They wanted to do some cleanup efforts on their own. And the company, obviously, understandably, didn’t want to do any further cleanup beyond what E.P.A. had ordained. You can understand that.

Interestingly, though, E.P.A. came in on the side of the company in this court. And as it turned out, I was in dissent. The court held, and you can read the law, and it’s a very reasonable interpretation — I’m not here relitigating the past — but held that at the end of the day, anyone in 300 square miles in Montana has to ask the federal government for permission to clean up their own backyards.

French: So this leads kind of naturally to the expertise question, which is something that is also dealt with in the book. If I’m unfairly summarizing, please tell me, but if I was going to summarize your position on expertise, it would be that, yes, experts are necessary, but also, experts are human, and they make mistakes, or they reach contradictory or sometimes competing conclusions.

You spend a lot of time around the Covid restrictions and the Covid regulations during the height of the pandemic and afterward. When you’re in this mode of observing — as you were talking about earlier, part of this book is about observing — what is it that stood out to you about that 18-month to two-year to sometimes even stretching three-year period regarding Covid restrictions and particularly expertise?

Gorsuch: Let me approach it this way. You’re absolutely right that in an increasingly complex world, we need experts. There’s no question about that. At the same time, our system of government is premised on the idea that we the people — those are the first three words of our Constitution — are sovereign, and we are entitled to govern ourselves. We’re approaching the 250th anniversary of the Declaration of Independence, right? And three great ideas there: We’re all created equal, we all have inalienable rights and the legitimacy of the government stems from the consent of the governed. Those are radical ideas, and to start a constitution with “we the people” was a radical idea.

And I think if you go back and you look at what Madison and others had in mind, it could be summarized by the wisdom of the masses, that concept. You know, Francis Galton, who’s a cousin of Darwin, went to a county fair in England, and there was a “guess the weight of the ox” contest. And he observed all the experts and their guesses on the weight of the ox. But then he also summed up all the guesses of ordinary people. And he found that the average of the ordinary people’s guesses was more accurate than any of the experts.

And I think that’s what our system of government was designed to take advantage of or to tap into, right? That’s why we have two houses of Congress — right? — bicameralism. And it has to have this sent to the president to override — presentment, we call it. And there we bring all ideas to bear. Everywhere, all voices come into our laws. And there has to be some compromise.

And yes, it’s hard. It was intended to be hard. And we can tap into everybody’s wisdom. We lose that when we don’t, when we don’t exercise the legislative process. You ask about Covid. Legislatures largely fell silent during that period. So largely did courts. And we were ruled predominantly by edicts, a process by the executive branch both at the federal and state level. And, listen, during an emergency, that’s very important. And that idea is very old, too, that the executive should have extraordinary powers during times of emergency.

You can find that in the Federalist Papers. You can find that in John Locke in the “Second Treatise of Government.” OK, not questioning that. But it does give you a glimpse into a world where everything’s done by the executive branch without tapping into the wisdom of the masses. And a lot of the restrictions were terribly important, but did it have some collateral consequences we didn’t expect? Maybe. Right?

So who’s most able to arrange their affairs and operate in a world where edicts change every week, where the law changes every week, quickly, all the time? Small businesses or large businesses? And during the pandemic, it turns out billionaires saw their net worth increase by 70 percent, while a lot of small businesses — and you walked down any Main Street, you saw them shuttered.

French: One of the interesting parts of the book, and this is something I covered throughout the pandemic, was the way in which different institutions were treated differently, that you could have a casino, for example, where a large number of people gather, and that was going to be permitted to open and then a church, where also — sometimes, not all, most churches are relatively small — large numbers of people gather, was told to stay shut.

This was an interesting example, in my mind, of how expertise is often impacted by economic interests and bias, in much the same way that almost any other form of governance is impacted by economic interests and bias.

The question that I had, though, was when you’re looking at the pandemic, it seems that there was a judicial judgment call going on, which was: When do we move from what I called at the time pandemic law? In other words, this extreme deference to an executive, to more regular order, where we’re actually going to apply the normal level of scrutiny to an executive’s actions or the government’s actions. How did you think through that line at the time and how would that inform you, going forward?

Gorsuch: Well, I think you make an interesting point about the casino. And that was an actual case we faced, where — and I’m not going to remember the exact figures off the top of my head, but I believe in Nevada — the governor, informed by experts, ordained that casinos could remain open at 50 percent occupancy and the churches were subject to much greater restrictions than that. And you have to ask yourself: Why?

Maybe religion’s never been a very popular business in Nevada, unless it has to do with a wedding chapel and Elvis. I don’t know. And casinos may be more popular. I don’t know. But you have to ask yourself that question. And when the executive branch has control over the whole lawmaking process, are there going to be winners and losers in that? And what happens to our liberties in those times? And that was a question we all had to ask ourselves as we went through that process.

French: Do you think the court was too permissive for too long when it came to the actions of executives? Or when you’re reflecting on that fraught time in 2020, do you feel like the court mostly got that jurisprudence right?

Gorsuch: When I look back at that period of time, what I think is there are lessons to be learned there. And I do think all of us need to reflect on that time. When churches are closed, casinos are open. When small businesses close, large businesses thrive. When there was disparate enforcement of certain regulations. It was illegal in many places to gather on street corners. Just to say hello. And some statistics suggest that African Americans were 2.5 times more likely to be prosecuted for violations of those orders than white Americans.

Now, were the restrictions also very important to keep people safe and save lives? Of course. But I’m just a judge. At the end of the day, I just decide the cases that come to me, David. OK? I don’t get to pick and choose, and I don’t rule the country. And you don’t want judges to rule the country.

All Americans, they rule the country. We the people have to reflect on that, and I think it was very important for us to reflect on that period and to do so in a careful, thoughtful way, now that the pandemic’s passed, and think about what we want to do the next time this arises.

‘What is your temperature check on the collegiality of the court?’

French: So one of the interesting parts of the book is you talk about the lack of human connections during the pandemic, for example, but also more broadly, you refer to “Bowling Alone,” the Robert Putnam book that 25 years ago or so sort of predicted the current moment: lost relationships, fractured institutions. And let me zoom in to the court for a minute.

Justice Kagan gave some remarks to the Ninth Circuit recently where she talked about this issue of collegiality within the court. There’s been some friendships, for example, most famously of Justice Ruth Bader Ginsburg and Justice Antonin Scalia. Also recently, Justice Sonia Sotomayor gave a speech in which she said some really kind things about Justice Clarence Thomas and the way that he interacts with court personnel.

But Justice Elena Kagan said something interesting. She said the collegiality that America should be looking for — and I’m paraphrasing — is not “Do we go to the opera together?” but “Are we open to each other?” Are we collegial enough to where we are open to each other? What is your temperature check on the collegiality of the court?

Gorsuch: Well, you’re not going to drag me to an opera, David.

French: I wasn’t expecting to.

Gorsuch: There’s a lot in that question.

French: Yeah.

Gorsuch: I don’t know whether you want me to talk first about the court.

French: Let’s go first with the court and then with the culture.

Gorsuch: Sure. So with the court, I think it is important that we’re friends and that we enjoy each other’s company. We have a nice dining room upstairs. Lovely dining room, but it is the government, and we bring our own lunch. And oftentimes you’ll see the chief justice with a brown bag and a peanut butter and jelly sandwich. OK. Those moments are important. They’re human. But I also take the point that collegiality in a work environment means being able to work together well. And can I share just some numbers with you that I think tell the story on that?

French: Absolutely.

Gorsuch: We decide the 60, 70 hardest cases in the country every year where lower courts have disagreed. That’s the only point to get a case to the Supreme Court. We just want federal law — largely our job is to make sure it’s uniform throughout the country, and if the circuit courts are in agreement, there’s very little reason for us to take a case, unless it’s of extraordinary importance.

So most of the work we do is when lower court judges disagree about the law. Magically, I think in this country there are only about 60 or 70 cases. You could argue a little bit more, a little bit less, but there aren’t thousands of them. They’re very few in number.

There are nine of us who’ve been appointed by five different presidents over the course of 30 years. We have very different views about how to approach questions of statutory interpretation, constitutional interpretation about political disagreements or interpretive methodological disagreements. Yet we’re able to reach a unanimous verdict on the cases that come before us about 40 percent of the time, I think it might have been even higher this last term. I don’t think that happens automatically.

I think that’s the product of a lot of hard work. I think that’s proof of collegiality. OK? That is what we do and we do well. Now people often say, “Well, what about the 6-3s?” Fair enough. Fair enough. But that’s about a third of our docket. And it turns out they aren’t always what you think they are. About half the 6-3s this last term are not the 6-3s you’re thinking about.

They’re different makeups. And I think I read in The New York Times recently that in — quote — ideologically divided cases, something like that —

French: Divided along the lines of who nominated — Republican or Democrat?

Gorsuch: I don’t know. It was in your newspaper. According to The New York Times, in ideologically divided cases I voted for (what the paper termed) liberal results about 45 percent of the time. OK? That’s the court I know. And that I live with.

And by the way, that 40 percent of unanimous cases and about a third that are more divided — not always along the lines that you’re thinking of — those numbers are the same today as they were, more or less, in 1945.

French: Interesting.

Gorsuch: And in 1945, Franklin Roosevelt had appointed seven (or eight, depending on how you count) of the nine justices on the United States Supreme Court. And if we’re doing about as well today as they were then, I think that’s some proof of collegiality.

French: We’re running out of time, so I do want to get to a couple of other questions. One, Justice Kagan also raised this interesting idea regarding ethics. And she talked about that the Supreme Court has a code of ethics that she appreciates, but she also talked about the possibility of enforcement through — and I’ll read the quote here, one moment — “If the chief justice appointed some sort of committee of highly respected judges with a great deal of experience, with a reputation for fairness, you know, that seems like a good solution to me.”

And a reason for that, the creation of sort of an outside judicial panel would, part of it would be to protect the court, to provide an outside voice that could not only adjudicate potentially valid claims but also debunk invalid accusations. And she made it clear she was speaking only for herself. What’s your reaction to that concept?

Gorsuch: Well, David, since that talk, there’s been some developments in the world, and this is now a subject that’s being intensely discussed by the political branches, and I just don’t think it would be very useful for me to comment on that at the moment.

‘I look forward to a few years of fly fishing’

French: Most court reforms that I see are messaging legislation. In other words, they’re just thrown out into the ether to take a stand or perhaps to gain some airtime on cable news. But every now and then, contained within these reforms are ideas that have been bandied about across the political spectrum. And one of them is this concept of an 18-year term limit, which would have the advantage, in its proponents’ view, of making the Supreme Court nomination and confirmation process more predictable and put into a sort of a regular order where every president is going to be nominating a set number of Supreme Court justices. You obviously have a lifetime appointment. Have you reflected on that proposal at all? Is that something that you’ve had any thoughts or considerations about?

Gorsuch: David, I’m going to give you the same answer, OK? The only thing I’d add is that I look forward to a few years of fly fishing.

Janie Nitze: He’s told us before, we’re not going to be wheeling him out of here.

French: There’s an aspect of your jurisprudence that I just wanted to ask you about. And this is something that many readers of The Times might not be that familiar with, but your reputation as a justice is that you are one of the foremost champions of Native American rights and privileges that’s perhaps ever been on the bench. I’ve actually read aloud from some of these opinions that you’ve written, some of the history that you’ve written that can be quite searing in its description of how the United States government has treated Native Americans.

So I’m curious — and maybe this is one of those chicken-or-egg-type questions — but I’m curious as to whether that deep study that you’ve obviously done into the way in which the federal government has so profoundly harmed, over the years, the Native American community, I wonder if that has informed your thinking more broadly about centralized authority and the threats and dangers of centralized authority.

Gorsuch: Well, I’m going to leave the psychoanalysis to others.

French: OK.

Gorsuch: I really am, David. But on Native Americans, for the Native American law, it’s really, to my mind, pretty simple. If you’re an originalist and a textualist, you take seriously promises the federal government has made.

And the federal government made some promises. And the question is whether we’re going to keep them. And if Congress wants to change its promises, it can do that. But unless it does so, I think every person who comes before this court has the right to rely on the written law. There’s a saying that men have to square their corners with the government. Shouldn’t the government also have to square its corners with the people?

French: So you mentioned originalism. For a layperson, a lay reader, how would you define “originalism”? And would you call yourself an originalist?

Gorsuch: Oh, boy. This is a big one.

French: I save the good ones for the end.

Gorsuch: This one’s going to take a minute.

French: Yes.

Gorsuch: So what originalism is, is just the simple idea that you are entitled to rely on the written words in the Constitution. We the people, the American people, bothered to write it down. Write down the law. It was the first written constitution of its kind in human history. And so when it promises you a right to a jury trial, when it promises you a right to confront your accuser, when the laws enacted promised somebody by treaty certain rights, an originalist, a textualist, will take that seriously. And there’s going to be no pragmatic argument, no argument from efficiency. Nothing that can undermine that. Now, if you want to change the law, there are lawful processes for doing so, but the originalists and textualists, simply put, seek to honor written law.

French: So there has been a phrase that has become much more salient in the last couple of years —

Gorsuch: I could talk a lot — we could talk for an hour about originalism.

French: Justice Gorsuch, I would enjoy every second of that.

Gorsuch: But nobody else will.

French: We’ll keep going with this a little bit, though, because there is a phrase called “text, history and tradition” that has become more salient, particularly since the Bruen gun case. And there was the Rahimi case this last term, which involved a person who possessed a firearm when they were subject to a domestic violence restraining order. And for those folks who would consider themselves legal nerds, what was particularly interesting about the Rahimi decision — there were a number of concurrences describing what text, history and tradition sort of means to different justices.

The principal concern I have with this formulation: It seems to, as I read the text, history and tradition cases, they seem to call back quite often to colonial-era legislatures, to legislatures that existed in the early American period. And the question that I have is, why would these legislatures be considered trustworthy or terribly relevant as interpreters of constitutional provisions, when A) that’s not the role of the legislature, to be the interpreter of the law and B) we all know that legislatures can flat out defy the Constitution? And you mentioned one of the most famous incidents in the book, the Sedition Act that was passed so quickly after the ratification of the First Amendment. So how important should these early American legislative enactments be?

Gorsuch: Now, this really is a question for legal nerds.

French: It really is.

Gorsuch: And the answer is going to be the same, which is whenever you’re looking for the original meaning of a statute, we do that all the time, without objection. We’re all textualists now, right? Or the Constitution, there’s going to be better and worse evidence of original meaning, and certainly the Alien and Sedition Acts, I would argue, very bad evidence of the First Amendment’s meaning. You’re absolutely right.

And yes, legislatures can defy it. But what if you have an unbroken history of 100 years of legislative enactments that are consistent? Might that be some good evidence of the original understanding? Possibly, possibly. So, like anything else, it calls for, as Madison called, judgment. Judges need to exercise judgment, not will, he said.

And so an originalist is trying to divorce himself from what I want, because you really want me to enforce whatever I want for this country? No, you want judges to follow the law. They have to exercise judgment. And you bring to us evidence, whether it’s facts or law, we’re going to weigh that evidence and try to find what’s reliable and good and trustworthy evidence separated from that which is not.

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