Excerpt
A Republic, If You Can Keep It
1.
“A Republic, If You Can Keep It”
When you start a new job, your friends and family inevitably ask, “Is it what you expected?” The answer to that question is usually a mix of yes and no. It certainly has been for me.
The “no” part is pretty obvious. After all, no one can really expect or prepare for the job of Supreme Court justice. To serve the American people on our highest court is a humbling responsibility. In our history, only 114 men and women have done so.
The “yes” part may be a little less obvious. But in many ways the people and place are happily familiar. A surprising number of the Court’s employees still remember me from my days as a law clerk years ago—and all have gone out of their way to offer me a warm welcome. It is an honor to work with such dedicated public servants.
As it happens, too, three of the justices who served on the Court back then were still serving when I returned. Justice Anthony Kennedy, for whom I clerked, is rightly regarded in our profession as a model of civility and judicial temperament. It was a special joy to be able to work by his side again—and apparently the first time a law clerk and his former boss had the chance. When I was serving as Justice White’s law clerk, he retired and Justice Ruth Bader Ginsburg was appointed to serve as his successor. I remember the day my old boss passed along to his new colleague his law clerk manual, just in case she’d find it helpful in setting up her office. Shortly after my confirmation, Justice Ginsburg returned that same document to me, along with many helpful updates she had added over the years. That was quite a moment for me. I also have a distinct memory from my time as a law clerk of watching Justice Clarence Thomas walk from his chambers to the Justices’ Conference Room to discuss cases. He was lugging a rolling book cart filled with briefs and binders and papers, his booming laugh filling the hallways. Fast-forward and, on one of my first days as a justice, I’m walking to the Conference Room to discuss cases, and what do I see? Justice Thomas, with his book cart filled with briefs and binders and papers, and his same booming laugh.
More than all that, though, my new day job is a little like the one I shared for many years with wonderful colleagues on the court of appeals. Now, as then, the days are filled with reading briefs, listening to the arguments of lawyers, studying the law in solitude, and engaging with colleagues and law clerks. Each court, too, bears rites and rituals that serve to remind us of the seriousness of our common enterprise and the humanity of each person in it. When we conferred on cases at the Tenth Circuit, inevitably someone would volunteer to bring coffee, mugs would be passed around, and before getting down to the business of discussing cases we’d begin by asking after one another’s families. When a new member joined the court, we convened in a retreat to welcome the new judge, answer questions, express our support, and reflect on our aspirations as colleagues. Every other year, we gathered in conferences with the lawyers who regularly appeared before us to discuss the state of the circuit, along the way coming to appreciate one another more fully not just as professionals but as persons.
At the Supreme Court, the rituals are different but the point is the same. We eat lunch together regularly and share experiences and laughs along the way (Justice Stephen Breyer seems to possess an endless reservoir of knock-knock jokes). We flip burgers together at the Court’s annual picnic and celebrate birthdays and the holidays with song (always enthusiastically if not always melodically). We welcome employees’ children in our chambers for trick-or-treating as they parade costumed around the building. Every justice at some point in the year sits down for lunch with the law clerks of every other justice. And whenever we gather for work, no matter how stressful the moment, each justice shakes the hand of every other justice. That practice dates back to the late nineteenth century and may seem a small gesture, but those thirty-six handshakes can break the ice and lead to kind words or a personal story. More recently, Justice William Rehnquist introduced an end-of-term party in which our law clerks put on a skit whose primary purpose seems to be to rib each of the justices good-naturedly. When he wrote to Chief Justice Warren Burger proposing the idea, Justice Rehnquist reportedly quipped, “I should think we could have a very enjoyable evening out of it”—and we do. At the gathering, there’s also a contest where the law clerks try their hand at trivia questions about the Court, its cases, and its history. In front of all the Court’s employees, the Chief Justice grills the clerks with questions like “What phrase is inscribed on the back of the Supreme Court Building?” (“Justice the Guardian of Liberty”) and “Where and when did the first meeting of the Supreme Court take place?” (The Royal Exchange in New York City in February 1790). Simple traditions like these help renew our mutual respect and affection even, and especially, when we are unable to agree on the work at hand. They help ensure, too, that as a Court we never lose sight of our shared history.
My worry is that in our country today we sometimes overlook the importance of these kinds of bonds and traditions, and of the appreciation for civility and civics they instill. The problem can be summed up in a few numbers. According to polling by the Woodrow Wilson National Fellowship Foundation, 60 percent of U.S. citizens would flunk the U.S. citizenship test. In fact, it seems only one state—Vermont—has a majority of people who could pass it (and even then, only with a D). A quarter of Americans don’t know that freedom of speech is protected by the First Amendment. And, yes, it seems about 10 percent believe Judith Sheindlin serves on the Supreme Court. You may know her better as Judge Judy. Meanwhile, nearly three-quarters of Americans believe the country is suffering from a crisis in civility. A quarter have reported enduring cyberbullying or incivility online. About the same percentage have transferred children to different schools because of incivility. At the same time, other people are actually calling for an end to civility. They say that civility is a coward’s virtue and that more anger is needed—that the stakes are too high and the ends justify the means.
But a government of and by the people rests on the belief that the people should and can govern themselves—and do so in peace, with mutual respect. For all that to work, the people must have some idea how their own government operates—its essential structure and promises, what it was intended to do and prohibited from doing. We must, as well, be able to talk to one another respectfully; debate and compromise; and strive to live together tolerantly. As Lincoln put it in far more trying times, “[W]e must not be enemies. Though passion may have strained, it must not break our bonds of affection.” History teaches what happens when societies fail to pass on civic understandings and come to disdain civility: Civilization crumbles. Europe in the twentieth century had people, too, who, seeking to remake the social order in the vision of their ideology, thought the stakes of the day were too high to tolerate discourse and dissent. They also believed the ends justified the means, and it didn’t end well.
None of this means, of course, that we are destined for the same path. The essential goodness of the American people is a profound reservoir of strength, and this nation has overcome much graver challenges time and again. But we should never ignore the fact that republics have a mixed record in the history books. Our blessings cannot be taken for granted and need constant tending. As Franklin said, we have been given a republic, if we can keep it.
