When he accepted the President’s nomination to Supreme Court, Judge Neil Gorsuch went out of his way to praise other judges for adhering to “their judicial oaths to administer justice equally, to rich and poor alike.” Gorsuch’s understanding of that same oath could shape decades of precedent on everything from access to courts to the imposition of criminal fines. So, during his confirmation hearings, the Senate should ask Gorsuch what he understands his oath to mean—particularly the part about doing “equal right to the poor and to the rich.”
In a forthcoming article, I discuss the history of the judicial oath’s “equal right” principle, including its role in recent confirmation hearings. For instance, when then-Judge John Roberts was nominated to the Court, Senator Richard Durbin asked about the relationship between being a Justice and doing justice: should a federal judge “take into consideration that in our system of justice the race goes to the swift, and the swift are those with the resources, the money, the lawyers, the power in the system?” Roberts enthusiastically agreed, adding that “the judicial oath talks about doing justice without regard to persons, to rich and to poor.”
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 week the Court decided Department of Transportation v. Association of American Railroads, which asked whether Amtrak runs afoul of the separation of powers. Of special note, Justice Alito’s concurring opinion offered some brief but thoughtful remarks on the constitutional oath of office. In Alito’s view, the oath plays an important role in identifying officers, installing them, and (most interestingly) ensuring their accountability. This is a welcome discussion, as the oath’s legal role is (in my view) seriously underrated. Below, I question and expand on Alito’s various points.