Newest Supreme Court justice at U of L: 'Judges should wear robes, not capes'

Supreme Court Justice Neil Gorsuch, who owes his appointment to Sen. Majority Leader Mitch McConnell, returned the favor by speaking Thursday at the University of Louisville’s McConnell Center.

Tailoring his message of judicial conservatism to his local audience, Gorsuch said allowing unelected judges to “make law” is “like asking Lamar Jackson to do the kicking.”

Speaking before a full house of 550 attorneys, judges, students and dignitaries at Comstock Hall, Gorsuch said judges should “take the baton” from the founders and interpret the Constitution as it was written.

“Judges should wear robes – not capes,” said Gorsuch, who was introduced by McConnell. “They should say what the law is, not what it should be.”

Gorsuch was making one of his first public appearances since he was affirmed in April. President Barack Obama last year nominated Judge Merrick Garland to replace Justice Antonin Scalia, who died in February 2016, but McConnell blocked the appointment, claiming the next president should have the right to make the nomination

Gorsuch has voted on only 15 Supreme Court cases but so far has walked in Scalia’s footsteps: In every case he has sided with the court’s most conservative member, Justice Clarence Thomas, according to FiveThirtyEight, a statistics-based news site. In his first vote on a death penalty case, he cast the fifth and deciding vote that allowed Arkansas to execute Ledell Lee, one of eight inmates the state sought to put to death in 11 days before a sedative used in lethal injections was set to expire.

Speaking in a soft voice that was sometimes hard to hear, Gorsuch talked about important mementos in his chambers, including a giant stuffed elk that Scalia bagged and named “Leroy.”

“We are both from Colorado and neither of us will forget Justice Scalia,” he quipped.

But getting more serious, he also cited two portraits on his office walls – one of Justice John Marshall Harlan of Kentucky, who cast the court’s lone dissent in Plessy vs Ferguson, the 1896 case in which the court upheld racial segregation for public facilities under the separate but equal doctrine.

Gorsuch called the opinion a stain on the court and said Harlan’s portrait reminds him that the law must be colorblind. He said another picture, of James Madison, the author of the Bill of Rights, serves as a  reminder for him of the importance of obeying the Constitution.

Opinion:Gorsuch’s confirmation worth the fight | McConnell

Background:Gorsuch confirmation to have major impact on all three branches of government

But Gorsuch said the dispersal of power among the three branches of government – rather than the Bill of Rights, “is what make makes us free.” He noted that Scalia once said “every tin horn dictator in the world today, every president for life, has a Bill of Rights.”

In a 45-minute address, Gorsuch, who took no questions, said judges should ignore policy debates and avoid trying to reach certain results. “Sometimes the good guy loses and the bad guy wins – but that is what the law demands,” he said.

“Why bother winning elections if judges can make the law?” he added.

The son of Anne Gorsuch Burford, President Ronald Reagan’s EPA administrator, Gorsuch, 50, is from Denver, attended Harvard Law School and served on the 10th U.S. Circuit Court of Appeals.

He was confirmed by the Senate after Republicans triggered the so-called "nuclear option," lowering the vote threshold on nominations from 60 to 51, allowing Republicans to break a Democratic filibuster.

Gorsuch, who met privately with McConnell Scholars as part of the center’s distinguished speaker series, was the third justice to speak at the center.

The program, which celebrated its 25th anniversary last year, has provided more than $3.5 million in scholarships to 250 students.

Reporter Andrew Wolfson can be reached at 502-582-7189 or awolfson@courier-journal.com