In a 2011 speech at the Conservative Political Action Conference, President Donald Trump said that President Barack Obama “came out of nowhere. .. the people that went to school with him, they never saw him, they don’t know who he is.” Neil Gorsuch may be able to clear up the confusion.
Gorsuch, who Trump tapped on Tuesday to fill the Supreme Court seat left by the late Justice Antonin Scalia, graduated from Harvard Law School in 1991—the same year as Obama. But they don’t share many similarities aside from the calligraphy on their diplomas. Despite a shared alma mater, Gorsuch is lauded by many conservatives for his originalist interpretation of the Constitution, whereas Obama’s more liberal approach fits within an evolutionist framework. Of course, it would be odd and problematic if everyone were to graduate from law school with an identical set of beliefs; fostering diverse thought and interpretations is one of the foundational goals of education. And the fundamental divide exemplified by Obama and Gorsuch is particularly important at the highest levels of the polarized, contemporary judicial system.
To get a better understanding of the differences between these two approaches, of how a similar legal education could result in such ideological divergence, and of what factors impact Constitutional interpretation, I spoke with Richard Sander, a professor of law at the University of California, Los Angeles. Our conversation below has been lightly edited for length and clarity.
Hayley Glatter: Neil Gorsuch and Barack Obama both graduated from Harvard Law School at the same time, in 1991, and yet they have vastly different interpretations of the Constitution and fall on very different parts of the political spectrum. How can a consistent law education result in these disparities and what do law schools do to foster such differences?
Richard Sander: Let me suggest some categories that are helpful in thinking about this: There's common law, which is primarily judge-made, and in America usually exists at the state level. Then there's public law, which usually refers to statutory systems, often created by Congress. And then there's Constitutional law, which is the evolving interpretation of the Constitution.
Something we do in law school is emphasize the evolutionary aspect of common law. So I think most attorneys understand that the common law is supposed to evolve and that what judges are engaged in is looking at the facts of cases that come before them and thinking about what those facts tell them about changing social conditions. I think that the fact that law professors teach students to think about this evolutionary aspect means that there's no such thing as originalism in common law. There's some people who temperamentally give more weight to precedent and some who will defer more to new economic and social developments, but everyone understands that the law's supposed to change.
Compare that with Constitutional law: In the Constitution, we have this many thousand-worded document that lays out the basic structure of the U.S. government. What has risen in the Supreme Court and in academic circles as well is a view among a lot of folks that the Constitution, although it has detail, it's sufficiently broad and sufficiently brief, and that judges need to evolve it the way that they evolve the common law. So when social conditions change, they need to adapt the Constitution to those new conditions. So when homosexuality becomes widespread and accepted, then we need to rethink what the equal-protection clause means in terms of gay rights.
And then you have the alternative view of originalists who say, well, unlike the common law, here we actually have a written down, deliberated, and adopted body of specific constraints. And that's it. That's what we're supposed to work within. And the Constitution is designed to create limitations on government, so we need to enforce those limitations. So I think a lot of the debate between a Gorsuch approach to Constitutional law and an Obama approach to Constitutional law would be that difference between seeing the Constitution as an evolving doctrine—or evolving body of doctrine—or seeing it as something where change is necessary, but you want to continually strive to stick with the original intent.
Glatter: You mentioned there's no such thing as "originalism" as it applies to the common law. In that instance, what guidance does the Constitution offer as it relates to common law?
Sander: Well in different areas, the Constitution is relevant. The Fifth Amendment of the Constitution says the government cannot take private property without compensation. That's very relevant because that means that if state legislature passes a law that says you can't build anything on property that's within three miles of the ocean, that can be challenged as an unconstitutional infringement—as something that the state government can get if it wants, but it has to pay for it. An originalist would tend to say, “This Fifth Amendment rule, which we call the takings doctrine, is intended to be a strict limit on government and we have to invalidate any regulation that intrudes on private property in that sort of way.” And the evolutionists of Constitutional doctrine would say, “Well, the fact is that we have big environmental problems that we could not imagine in the 18th century, and we need to allow government to regulate hazardous environmental activity. That may create constraints on private property, but those are permissible constraints.” So one's Constitutional interpretation could then affect the scope of common-law property rights.
Glatter: Do law schools teach both this evolutionary and originalist approach? I'm just trying to wrap my head around how two people could have these pretty divergent interpretations at the most basic level for Constitutional law.
Sander: Yeah, I think so. The divergence can come in a couple different ways, and obviously I'm oversimplifying here. But one is that everybody learns this evolution principle when they're studying common law and everybody learns the idea of originalism when they study Constitutional law. So those two contrasts are hard-wired into legal education. And what will vary is how much: You could have a Con-law professor who very much emphasizes the importance of the evolutionary perspective in Constitutional law. But almost all Con-law professors are going to highlight the differences between an originalist philosophy and an evolving philosophy of the Constitution. And they'll encourage students to debate it in class and so on. So that kind of intellectual controversy is considered to be part of what law school is trying to do, and I think rightly, because lawyers have to be prepared to understand that when they're litigating real-world cases, judges may have a variety of perspectives on the law.
Glatter: In a paper you co-authored a few years ago about the factors that contribute to success among lawyers, you identified law-school grades as an important predictor of post-grad achievement. What factors—such as where somebody went to law school or whether or not they succeeded in law school—also have a notably large impact on that person’s Constitutional interpretation and their achievement as a lawyer?
Sander: Well, I don't think that there's a strong relationship between where you went to law school or how you did and whether you're an originalist or an evolving Constitutionalist. I think those might be the result of ideological orientations you had before you went to law school, or just kind of your intellectual reaction to what you come across in law school. You may take Con law and feel that there are all these areas where the Constitution is unreasonably holding the government back. And so you become sympathetic to the evolutionist point of view. Or you may just feel that Constitutional law has become too malleable and it's losing it's meaning and it's just reflecting the political preferences of whoever's on the Supreme Court. And that might move you to an originalist position. So I think the things that I've been describing are pretty common across law schools and therefore that fact that Gorsuch and Obama went to the same law school isn't going to have that powerful of an effect on their judicial philosophy.