President Trump is preparing to nominate someone to the US Supreme Court, presumably creating an opportunity for confirmation hearings to ventilate competing views of the judicial role. I have a draft paper that discusses one aspect of a judge’s duty: the federal judicial oath to do “equal right to the poor and to the rich.” It turns out that several of the reported front-runners have commented on this oath. Here, I’ll explore some interesting albeit brief published comments by the most recent figure to float to the top: Judge Neil Gorsuch of the Tenth Circuit.
Last year, Gorsuch published some remarks entitled “Of Lions and Bears, Judges and Legislators, and the Legacy of Justice Scalia” (66 Case W. Res. L. Rev. 905 (2016)). The gist of the remarks was that the late Justice Scalia’s legacy includes a permanent shift in legal culture away from policy reasoning and toward textual analysis, consistent with Justice Kagan’s recent remark that “we’re all textualists now.”
Though Gorsuch was not focused on oaths, he alluded to them at prominent points in his speech. Near the start of his discussion, Gorsuch asserted the basic importance of the oath:
First, consider the Constitution. Judges, after all, must do more than merely consider it. They take an oath to uphold it. So any theory of judging (in this country at least) must be measured against that foundational duty.
I tend to agree. In fact, the Constitution itself requires an oath or affirmation of constitutional fidelity–the topic of a recent paper of mine.
Later in his comments, Gorsuch moved beyond the constitutionally required oath to note the more specific and detailed federal judicial oath, which is set out in a statute. Here is the most relevant part of his remarks:
Throughout my decade on the bench, I have watched my colleagues strive day in and day out to do just as Socrates said we should–to hear courteously, answer wisely, consider soberly, and decide impartially. Men and women who do not thrust themselves into the limelight but who tend patiently and usually quite obscurely to the great promise of our legal system–the promise that all litigants, rich or poor, mighty or meek, will receive equal protection under the law and due process for their grievances.
That passage ends with a footnote that quotes the statute establishing the federal judicial oath, including the promise to “do equal right to the poor and to the rich.” 28 U.S.C. § 453.
But, what does that evocative promise entail? In my draft paper, I explore the history of the equal right principle and argue that it is at least plausibly read as a basis for federal judges to promote substantive economic equality when implementing underdetermined sources of law. I also argue that, through judicial confirmation hearings and other forms of public contestation, the equal right principle can help to specify federal judges’ legal and moral commitments toward the poor.
Whoever the nominee turns out to be, I hope that the resulting confirmation hearings spend some time exploring what it means to do “equal right to the poor and to the rich.”
First posted on Prawfs.