When Neil Gorsuch joined the Supreme Court in 2017, Justice Ruth Bader Ginsburg had something in store for him.
About a quarter-century earlier, a young Gorsuch was a clerk splitting his time between Justice Byron White, who had hired him but retired, and Justice Anthony Kennedy.
White tasked Gorsuch with organizing the so-called clerk manual, a set of notes meant to guide law clerks as to their responsibilities. White wanted to pass on the binder to his successor, Ruth Bader Ginsburg, in case she might find it helpful as she organized her chambers.
“Well, fast forward about 25 years or whatever it was,” Gorsuch told CNN in an interview, “in my first week on the court, what do I receive?”
“A note in my inbox along with a big binder saying, ‘You may recognize some of this. I hope I’ve improved it a little bit since you’ve last seen it,’” Ginsburg wrote, according to Gorsuch.
Gorsuch’s tale reflects that the Supreme Court justices who wrestle with some of the most difficult issues of the day – and sometimes spar ferociously in their dueling opinions – are a collegial bunch off the bench.
In a new book, “A Republic, If You Can Keep It,” Gorsuch details the rituals the justices do to preserve collegiality as the other branches of government have dissolved into rancor. There are the handshakes before oral arguments and lunches where discussions concerning court business are forbidden. (Gorsuch says that Justice Stephen Breyer “seems to possess an endless reservoir of knock-knock jokes”).
And the justices have rallied around Ginsburg who has just announced her fourth bout of cancer.
“We all adore Ruth Bader Ginsburg,” Gorsuch said, adding that he is looking forward to seeing his 86-year-old colleague on the bench in October.
Which isn’t to say that the two are ideological soulmates. Not at all.
In public appearances leading up to the new term, Ginsburg has publicly criticized originalism, Gorsuch’s judicial philosophy, although she does not single out Gorsuch or any other justice by name.
Gorsuch believes a judge should look to the original public meaning of the Constitution.
“Originalism says simply that the words on the page that were written and ratified by the people cannot be changed,” he said.
“The Court can’t change them – you can change them through the Amendments if you want, and there have been 27 of them in our history.”
Ginsburg sees things very differently.
“Think how things were in 1787,” Ginsburg said to a gathered crowd of about 10,000 people in Little Rock, Arkansas, last week.
“Who were ‘We the People’? Certainly not people who were held in human bondage because the original Constitution preserves slavery.” The crowd of admirers roared. “And certainly not women.”
Ginsburg, who before taking the bench changed the law in the area of gender neutrality, said the framers were a “rather elite group” but that she agreed with the late Justice Thurgood Marshall, who dedicated his years as a lawyer to civil rights law.
“Marshall said he doesn’t celebrate the original Constitution. But he does celebrate what the Constitution has become now, well over two centuries and that is the concept of ‘We the people’ – has become even more inclusive,” she said.
Ginsburg might be called a “living constitutionalist” – someone who believes the meaning of the Constitution evolves with the present day.
In his book, Gorsuch says he believes that such a philosophy – instead of “treating the Constitution like any other written law and interpreting it according to its original public meaning” – allows judges to “bend the Constitution in new and evolving ways.”
In the CNN interview, Gorsuch had a response to Ginsburg’s complaint.
“We the People amended the Constitution, to fix both those grave injustices – the injustice of slavery and the injustice of the treatment of women in this country and their suffrage. We the People through the amendment process prescribed by the Constitution – the original Constitution – improved the Constitution, and made it a better document.”
And that, he said, “was the proper process to do that.”