On a beautiful autumn afternoon in 2016, I found myself sitting outside enjoying lunch with a friend. In kind tones, he told me that he thought it was a shame I hadn’t made then-candidate Donald Trump’s publicly announced list of potential Supreme Court nominees. No matter, I replied: I was very happy with my job as a federal circuit judge and loved my life in Colorado. Soon enough the conversation moved on, a lazy meal ended, and we said our goodbyes. But before I managed to walk a block, my phone buzzed. It was a text from my lunch companion: A new, second list just came out and I had to see it.
Looking back, I can see that this moment marked the beginning of the end of my life as I had known it. It wasn’t so obvious at the time. Even as the election neared, the polls reported that candidate Trump had little chance of becoming President Trump. What’s more, my friends told me, the second list was just a courtesy or maybe for show and only the first list mattered; so even if the polls proved wrong, there was no way I’d wind up the nominee. All that sounded about right to me.
It came as a surprise, then, when I received a call two months later asking me to come to Washington to interview with the Vice President–elect. And it was an even greater surprise when, soon after that, the President-elect asked me to visit him in New York for a second interview.
The shock still hadn’t worn off when I found myself sitting with my wife, Louise, in the White House on January 31, 2017. I could hardly believe that later in the evening the President would announce to the nation his intention to nominate me to the Supreme Court. The formal nomination would be transmitted to the Senate first thing the next day, February 1, on what would have been my father’s eightieth birthday. It was a lot to take in.
Not just for me, but for my family too. Earlier in the day, the President tweeted: “Getting ready to deliver a VERY IMPORTANT DECISION! 8:00 P.M.” The media knew the decision concerned the Supreme Court pick but had no idea who the nominee would be. Television commentators speculated all day. Meanwhile, I sat quietly in the Lincoln Bedroom working on my remarks for the evening’s announcement. The President had offered me that historic spot as an office for the day. Knowing that Louise was born and raised in England, he gave her the use of the bedroom across the hall typically reserved for Queen Elizabeth and once occupied by Winston Churchill. Finding a little time late in the day, Louise rang her father back in England to tell him the news, but before she could say anything my father-in-law interjected that he had stayed up to watch the announcement. He had seen all the reporting, and he was sure that a friend of mine was about to get the nod. Louise replied that she was pretty sure I was the pick. No, he countered, the other fellow was caught on television just now driving toward Washington, and the newscasters were sure it was him. My father-in-law wasn’t even convinced when Louise told him that we had slipped through the White House kitchen entrance and were now in the Lincoln Bedroom. Maybe the real nominee was in a room down the hall?
To be fair to my father-in-law, I was almost as surprised as he was that I was busy preparing for a nationally televised appearance in the White House. Only days earlier, I was happily living on a quiet country road called Lookout Ridge outside Niwot, Colorado, a little town named for a great Arapaho chief. Yes, I had written hundreds of judicial decisions over the last decade, sitting on an appellate court that serves about 20 percent of the continental United States. But few people outside of legal circles knew who I was.
That life was now over. Our trip to Washington was enough to convince me of that. Two young White House lawyers, Mike and James, had arrived at our home on the Sunday afternoon before the scheduled Thursday evening announcement of my nomination with the task of accompanying Louise and me to the nation’s capital. I was out mowing the lawn and asked the pair to join us for our usual Sunday dinner of chicken curry. They accepted and, after our meal together, headed off to a local hotel with plans to return the next morning to collect us for the flight.
Except at some point Monday morning the President told the media that he would be making his nomination on Tuesday instead of Thursday. Eager to break the news of the President’s pick before he could make his own announcement, reporters quickly descended on all of the homes of the prospective nominees, and satellite dishes, cameras, microphones, and lawn chairs soon crowded the end of our street.
Mike and James, wearing suits and ties (not exactly standard attire in the Colorado countryside), approached the frenzy in their rental car and immediately realized that if they continued to our home they would be spotted. To avoid that, and after more than a few abandoned plans—including a run to the local superstore for casual clothes—the lawyers called to ask: Would Louise and I please hike a mile through the prairie, away from the reporters’ camp? They promised to pick us up at a trailhead. It may have sounded good to them, but the prospect of lugging my wife’s suitcase through brush seemed like a bad idea to me.
Instead, Louise and I decided to ask a neighbor to drive us out. The reporters had already seen his car come and go a few times and maybe they wouldn’t notice—and, even if they did, it seemed to beat the alternative. Our neighbor, a dear friend, enthusiastically agreed. As we got into his car he said, “You know, Neil, I have a better idea. There’s another way out.” That was news to me. We had lived in our home for years, and while there were plenty of hiking trails and horse paths, there were no other roads out of the neighborhood. My friend pointed to a path that led from the back of a neighbor’s house to a nearby commercial barn and said he had managed to drive it before. “I grew up in Iran during the revolution, and I learned a thing or two there,” he continued. “And I would never buy a house with only one escape route.”
So I fled my house—and, temporarily, the spotlight—by way of a bumpy farm track. My neighbor and I came to call our experience the Escape from Lookout Ridge. In retrospect, it wasn’t an “escape” at all. That drive threw me face first into the topsy-turvy world of modern-day Supreme Court confirmation battles.
THIS BOOK WAS BORN of that confirmation process, though it is not about it. A decade earlier, the Senate had confirmed my judicial nomination to the Tenth Circuit by a voice vote, without opposition, and with the support of both of my home state’s senators, one a Democrat and the other a Republican. My hearing had lasted about fifteen minutes. This time around was different. As the months-long process unfolded, I heard people speak about the law and my decades in the profession in ways I didn’t recognize. Some suggested that as a judge I “liked” one group of persons or “disliked” another. In an effort to prove their point, they would sometimes single out a case where I had ruled for or against a particular kind of person but overlook plenty of cases where I had ruled the other way. Often, too, they would fail to engage the critical legal or factual reasons for the different outcomes. Others insisted that I promise to overrule certain decisions they disagreed with or reaffirm ones they preferred.
By the end of it all, I came to realize that some today perceive a judge to be just like a politician who can and must promise (and then deliver) policy outcomes that favor certain groups. They see the job of a judge as less about following the law and facts wherever they lead and more about doing whatever it takes to “help” this group or “stop” that policy. And it struck me: It’s one thing to worry some judges might aggrandize their personal preferences over a faithful adherence to the law; but it’s another thing to think judges should behave like that.
The idea that judges do—and should—allow their policy preferences to determine their legal rulings was foreign to my experience in the law. The judges I admired as a lawyer and those I have come to cherish as colleagues know that Lady Justice is portrayed with a blindfold for a reason. These judges strive every day to ensure that their decisions aren’t based on which persons or groups they happen to like or what policies they happen to prefer. They don’t pretend to be philosopher-kings with the right or ability to pronounce judgment on all of society’s problems. They never boast that they can foresee all the (often unintended) consequences of their decisions, let alone accurately calculate the optimal social policy outcome. They don’t seek favor or fear condemnation but recognize instead that the judge’s job is only to apply the law’s terms as faithfully as possible.
As the process unfolded, I came to worry that our civic understanding about these things—about the Constitution and the proper role of the judge under it—may be slipping away. At our founding the people fought a revolution for the right not to be ruled by a monarch or any other unelected elite, judges included. They wanted to rule themselves. They knew the right of self-government promised many gifts. The right to chart our own destiny as a people. To speak our minds, work as we wish, exercise our own faiths or none at all, pursue happiness as we see it, and secure a more promising future for our children. And to do all this in a culture that cherishes differences and aspires to assure equal treatment under written law.
The framers also knew that with a republic comes responsibility. Self-government is a hard business and republics have a checkered record in the court of history: Often they flicker brightly only to dim quickly. To succeed where so many others had failed, the framers understood that our republic needs citizens who know how their government works—and who are capable of, and interested in, participating in its administration. We won’t always agree about the right policies for the day. That’s to be expected, even treasured. After all, the capacity to express, debate, and test all ideas is part of what makes a republic strong. But to have any chance we must be able to listen as well as speak, to learn as well as teach, and to tolerate as well as expect tolerance. This republic belongs to us all—and it is up to all of us to keep it. I think that’s what Benjamin Franklin was getting at when he spoke publicly after he emerged from the Constitutional Convention. A passerby asked what kind of government the delegates intended to propose, and Franklin reportedly replied: “A republic, if you can keep it.”
My hope in writing this book is to contribute to a revival of interest in the Constitution of the framers’ design and the judge’s role in it. The founders studied history and sought to learn from the problems and build on the successes of past governments, and the written Constitution they designed has secured our freedoms and allowed us to govern ourselves for two centuries while winning countless imitators across the globe. Every one of us who shares this inheritance must understand the great gift we’ve received—not least because every generation must take its turn shepherding the government of and by the people, and every generation must do its part to ensure that its blessings are passed safely to those who follow. Many wonderful people and groups, like the National Constitution Center, iCivics, and Colonial Williamsburg, are hard at work promoting greater understanding and appreciation of our Constitution. My effort here doesn’t pretend to be as encyclopedic as theirs. Nor is this book intended for academics. It is intended for citizens interested in introductory and personal reflections on our Constitution, its separation of powers, and some of the challenges we face in preserving and protecting our republic today. It doesn’t contain all the answers or respond to every criticism. Instead, the reflections found here represent just a sampling of the speeches, articles, essays, and judicial opinions I’ve offered over the course of my thirty-year life in the law on some of the subjects I care most about. In one sense, too, I am today just in the early part of a new journey, having taken my current job only recently. So in that way, as well, this book represents more of a starting than an ending point.
FOR ME, ANY REFLECTION on our Constitution has to begin with an appreciation of its design. Of course, the Bill of Rights is vital: It promises the right to free speech, free exercise of religion, and so many other essential liberties. The Reconstruction Amendments and their promises of equal protection of the laws and due process are foundational too. But without limits on the powers of government, the promises of individual rights contained in these provisions are just that: promises.
Our founders knew that the surest protections of human freedom and the rule of law come not from written assurances of liberty but from sound structures. As James Madison put it, men are not angels and the value of their promises depends on structures to enforce them. To protect the rights of the people, the founders designed a Constitution that cedes to the central government only certain limited and enumerated powers that are, in turn, carefully separated and balanced. To the people’s representatives in Congress, the framers gave the power to make new laws restricting liberty—but at the same time they insisted that our representatives follow a deliberate and difficult process designed to achieve broad consensus before any new law might emerge. To ensure that the laws able to survive this careful process are vigorously enforced, the framers gave the power to execute the law to a single president rather than trust management-by-committee—but they also sought to ensure that the president could never arrogate the power to make laws or judge persons under them. Finally, to guarantee that all persons, regardless of their popularity or prestige, would enjoy the benefit of the laws when disputes arise, the framers created an independent judiciary—but they insisted, too, that judges insulated from democratic processes must have no role in lawmaking and should be counterbalanced with juries composed of the people.
In all these ways, the framers recognized that each branch had not only a virtue to offer but also a vice to guard against. When this design is respected, liberty is protected and the rule of law advanced. But when the executive or judiciary claims the power to write new legislation, or when the legislature or executive assumes the power to adjudicate cases, or when some other blurring of the lines occurs, liberty and the rule of law are placed at risk. Nor are these hypothetical worries or problems of the distant past. Later in the book, I share some everyday cases I encountered in my time as a judge where overlooking the structural protections of our Constitution had profound consequences for real people in our own time.
The design of our founders doesn’t just disperse power; it also has implications for how power should be exercised in each branch. Take the judicial branch. When it comes to the business of judging, our separation of powers makes clear that a judge’s task is not to pursue his own policy vision for the country, whether in the name of some political creed, social science theory, or any other consideration extrinsic to the law. Nor is it to pretend to represent (or bend to) popular will. The task of making new legislation is assigned elsewhere. As Alexander Hamilton put it, a judge’s job is to exercise “merely judgment,” not “FORCE [or] WILL.” A judge should apply the Constitution or a congressional statute as it is, not as he thinks it should be.
How is a judge to go about that job? For me, respect for the separation of powers implies originalism in the application of the Constitution and textualism in the interpretation of statutes. These tools have served as the dominant methods for interpreting legal texts for most of our history—and for good reason. Each seeks to ensure that judges honor the law as adopted by the people’s representatives, and each offers neutral (nonpolitical, nonpersonal) principles for judges to follow to ascertain its meaning. Rather than guess about unspoken purposes hidden in the hearts of legislators or rework the law to meet the judge’s estimation of what an “evolving” or “maturing” society should look like, an originalist and a textualist will study dictionary definitions, rules of grammar, and the historical context, all to determine what the law meant to the people when their representatives adopted it.
Now, sticking to the law’s original meaning doesn’t always make a judge popular or majorities happy. There are times when a faithful application of the law means that a friendless party will win and the sympathetic side will lose. That can be a hard thing for many people to swallow, and a hard thing for a judge too. But sticking to the law’s terms is the very reason we have independent judges: not to favor certain groups or guarantee particular outcomes, but to ensure that all persons enjoy the benefit of equal treatment under existing law as adopted by the people and their representatives.
Still, this tells only half the story. While our constitutional republic may be the greatest the world has known, that is no license to ignore its shortcomings. Some I’ve alluded to already and many are discussed in the chapters that follow. What happens to our experiment in self-government when we have such difficulty talking with and learning from one another in civil discussion? How can a self-governing people rule themselves if so many do not understand how our government works or the limits on its powers? How can we expect our own rights to be protected if we are not willing to respect the rights of others in return?
For judges and lawyers there are other questions, too, that maybe hit even closer to home. Why is it that cases in our civil justice system today drag on for so long, and the fees pile up so high, that many people cannot afford to bring good claims to court and others are forced to settle bad ones? How is it that in our criminal justice system the laws have grown so numerous that a prosecutor can often enough choose his defendant first and find the crime later? Over the years, I’ve worked on and written about challenges like these. I don’t begin to claim to have all the answers, but I am sure we cannot ignore the questions.
WHY DO THE IDEAS found in these chapters matter to me? Each of us has a story and reasons to be grateful for this nation, its many blessings, and why we are drawn to its service. My story has its roots in the American West and is the product of the people there.
I grew up a short bike ride away from my grandparents, who did as much to shape me as anyone. My paternal grandfather, John, grew up in Denver when it was a small cow town. One of my favorite photos shows him and his brother on a mule in the middle of a dusty Denver road that’s now a busy boulevard. He worked his way through college as a trolley car driver, started his own law firm, and served as president of the Denver Bar Association. He cared deeply about his community and he showed it, whether it was by serving charities or lending his efforts to the National War Labor Board in World War II or to fair housing efforts in growing Denver in the years that followed. He loved his family and practical jokes too. He had a terrible voice but loved to sing. By his example, he taught me to care about my community, work hard, and make the time we have here count—and to be sure to laugh a lot along the way.
My maternal grandfather, Joe, grew up on the wrong side of town, in a poor Irish and Italian neighborhood. His father died of tuberculosis before he was born and Joe helped support his mother and sister while still a child, working as a red cap at Denver’s Union Station. But he never complained. He was a man of great faith—maybe the greatest faith of anyone I’ve known. Looking back, he even said that God was kind for taking his father so soon, because if his father had lived any longer he and his whole family likely would have died from the disease. The nuns must have seen something promising in Joe because they arranged his scholarship to college. He became a surgeon but was never above kneeling at a bedside to pray with his patients. His nickname growing up was Tuffy, and he was tough indeed. He loved this country and the opportunities it had given him, and he loved leading quizzes for his many grandchildren, asking them to name all the states, state capitals, and presidents.
My grandmothers were strong women. They had to be. John’s wife, Freda, was a Colorado rancher’s daughter. Joe’s wife, Dorothy, grew up in small-town Nebraska. Freda was fiercely independent and probably a better athlete than her husband. She helped teach me to fish. Her family came to the West as immigrants and built a small lodge, the Wolf Hotel, at a railway stop in Saratoga, Wyoming. The hotel stands today, with family photos on display in the restaurant. Her brothers ran the family ranch in northern Colorado. Their little log cabin remained there for many years with my father’s childish handprints visible in the cement outside. Dorothy raised seven children, including six strong women, in a small home. She made sure each got the best education they could: all attended college. She saw some of her daughters die before she passed, but she never lost her faith. She adored long family road trips through the Southwest and Mexico; she’d picnic by the roadside and say the rosary with her husband aloud on the drive. She and Joe even ventured all the way to the Panama Canal before the era of superhighways, sometimes driving their car down dry riverbeds, just to see if they could make it. Dry as the West is, we all knew to bring an umbrella to her summertime mountain picnics: Dorothy had an uncanny knack for attracting unwelcomed rain.
My parents learned from their parents and I learned from them both. My father served in the U.S. Army and then followed his father into the law, but his real joy came from the outdoors. He loved camping, hunting, and skiing, but fishing most of all. He’d take my brother, sister, and me on camping and fishing trips in the mountains in his ancient army surplus canvas tent that never kept its waterproofing. Frost and rain became familiar friends. Even a slight breeze would knock over that old tent, and we learned to sleep with the canvas on our faces. He loved practical jokes too. I will never forget his reaction when he went to fill his coffeepot with water early one morning in camp, bleary-eyed, only to find that my brother had invited a garter snake to spend the night inside. I don’t think I ever saw him move so fast or jump so far. Maybe his favorite day ever was when he hooked a huge trout but the dog started to get tangled in the line. Dad had two bad choices: keep going and likely lose the fish to the dog’s excitement, or put down the rod and rush to put the dog in the car and likely lose the fish while the line went slack. He chose the second option. Miraculously, the fish was still on the line when he returned and he managed to reel it in. That fish still hangs in his old fishing cabin, but the car didn’t fare so well. In his excitement, the dog chewed through all of the upholstery on the side facing the river, sending tufts of cushioning everywhere. It took my father years to get the car fixed. I still don’t know whether he waited so long because of his frugality or because he liked the memory so much. Maybe both.
My mother was brilliant and a feminist before feminism. Born in Casper, Wyoming, she graduated from the University of Colorado at nineteen and its law school at twenty-two. That was a time when almost no women went to law school. She studied and taught in India as a Fulbright Scholar and went to work as the first female lawyer in the Denver District Attorney’s Office. There, she helped start a program to pursue deadbeat dads who had failed to pay child support, long before efforts like that were routine. Her idea of daycare often meant me tagging along. She never stopped moving. When she ran for the Colorado state legislature, where she was soon voted the outstanding freshman legislator, she wore out countless pairs of shoes walking the entire district again and again. As kids, we just had to keep up. Later, she served as the first female administrator of the Environmental Protection Agency in Washington.
I will never forget introducing Louise to the family. We met during my time in England studying for a doctorate. When I asked her to marry me and move to the United States, I knew it was a lot to ask of her. But Louise was up for the adventure, coming from a family of fearless British bulldogs. Her grandmother grew up in India and remembers watching a tiger run through a neighbor’s home chasing the family dog. Louise’s grandfather served as a British pilot until he was killed in World War II. Louise’s great-uncle also served as a highly decorated pilot, even if he was also often in trouble—including for flying his superior’s plane without permission (charges were reconsidered when it came out that he managed to take down a German plane in the process), and for flying his entire squadron under Sydney Harbour Bridge to celebrate V-J Day. Louise’s other great-uncle was a paratrooper, a hero of the Battle of Arnhem, who helped lead men stranded in German-occupied territory safely across enemy lines. When Louise flew to Denver to meet the family for the first time, my father thought it would be a nice surprise to invite over much of our enormous Colorado family and some friends too. Maybe a hundred people greeted her at the house as she arrived jet-lagged from her transatlantic flight. I was afraid she might just turn around.
She didn’t and she fell in love with the West. We raised two girls along with chickens, a goat, horses, a rabbit, dogs, cats, mice, and more in our home on the prairie. When I went to court to hear cases as a judge, she often went to sort cattle with cowboys. She loves the marvelous incongruities of the West today. The annual cattle drive that closes down the busiest street in downtown Denver for a parade. The stock shows where young 4-H members like our daughters primp their barn animals with hairdryers for display. The prize bull who gets to spend a day in a temporary pen in the lobby of the fanciest hotel in town—all right next to families gathered for an afternoon tea that Louise says is as good as any in England. Seeing all this through her eyes made me love my home—and her—all the more. We shared the wonder of the national parks of Wyoming and Colorado. The proud traditions and sad history of the Native American tribes in New Mexico and Oklahoma. The Great Salt Lake and the Mormons’ inspirational migration against all the odds and much prejudice. The grit and resilience of the Kansas farmer and the state’s bloody civil war history.
The West is close to our hearts. So are those we have worked and shared our lives with there. The Tenth Circuit is a highly diverse court, with judges of enormously varied and interesting backgrounds. They live in the mountains and on the flats, near the border and in great cities; they come from fancy law schools and local ones; and no fewer than three women have served as our chief judge. The court is also rightly regarded as maybe the most collegial federal circuit in the country. Judges work hard but are never hard on one another. During the confirmation process, some of my colleagues, seeing me on television in Washington and knowing I had caught pneumonia from all the travel back and forth, said I looked too skinny. So they sent a huge basket of food to fatten me up, “with love from your Obama-appointed colleagues.” That’s the Tenth Circuit.
Louise and I loved sharing the West with my law clerks too. Some were native to the area, but others came from far-flung places. They joined us on ski trips and hikes, and most every year a trip to the rodeo. I hired clerks who demonstrated not just intelligence but interest in public service and in the West. They helped me on cases that you don’t often see in other parts of the country. Cases about the rights of Indian tribes and the assaults on their sovereign lands. Cases about renewable energy, the use of national parks and other public lands, and fights over western gold: water. The clerks became a family to Louise and me.
THESE DAYS I SOMETIMES find myself thinking back a quarter century to a day when, as a law clerk, I was walking with my boss, Justice Byron White, along the ground-floor hallway of the Supreme Court. As we passed portrait after portrait of former justices, he asked me how many of them I could name. As much as I wanted to impress the boss, I admitted the answer was about half. The justice surprised me when he said, “Me too. We’ll all be forgotten soon enough.”
At the time, I didn’t realize what he was telling me. Justice White was not just one of the most famous men of his day but one of the most impressive. He was a World War II hero. The highest-paid professional football player of his day. A Rhodes Scholar. Before joining the bench, he served as John Kennedy’s deputy attorney general and helped desegregate southern schools. He never cared a fig when others criticized him—as many did, harshly and often, sometimes for supposedly “straying” from results they expected of him, and at other times for doing exactly what they knew he would do. How could anyone forget him? It seemed to me impossible.
Justice White’s portrait now hangs in the hallway with the others. Every time I walk by I see visitors standing before it wondering who he was. The truth is, Justice White was right and we are all forgotten soon enough. But with the passage of time I’ve come to see that this is exactly as it should be. In our conversation all those years ago, Justice White wasn’t so much lamenting a loss as speaking a truth he warmly embraced. He knew that joy in life comes from something greater than satisfying our own needs and wants. That this raucous republic is among history’s greatest experiments. And that, at the end of it all, the most any of us who believe in its cause can hope for is that we have done, each in our own small ways, what we could in its service.