The Courage To Sit Down And Lend An Ear: Justice Gorsuch The Listener

Phil Berg Attorney
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On Monday, Justice Neil Gorsuch sat for the first time in his new seat on the Supreme Court to hear oral arguments. At 10:00 a.m., the curtains behind the Court’s bench opened and he filed in and took his seat on the far left side of the bench next to the Court’s Marshal. And thus begins a lifetime of service hearing arguments at One First Street.

I emphasize the word “hear” for a reason.  The Supreme Court has an “argument calendar,” but the printed list of cases the Court prepares for each session is called the “hearing list.”  It is the chance for people to be heard.

At the end of every semester in his class on legal ethics at Colorado Law School, Neil would ask his students to write down what they would like to see in their obituary.  It gave them at least five minutes in their years of legal education to consider what they would most like to be remembered for.  My good friend Neil Gorsuch is still a young man, but having known him for most of that life, I can comfortably name one characteristic that will grace his obituary: an excellent listener. Neil is the Michael Jordan—or perhaps given his football hero, the John Elway—of listeners.

Neil’s ability to listen to and learn from others has been legendary on the Tenth Circuit.  Litigants regularly praised his thoughtful demeanor during oral argument, and pointed out that he read not only everything in their briefs, but the underlying cases they cited.  As Michael McConnell, a former Tenth Circuit judge and now a law professor at Stanford put it: “When discussing a point of law, Gorsuch listens and learns.  He does not act as if he always knows the answers.  I have seen him change his mind as a result of discussion.”

According to Neil’s law clerks, a number of whom I’ve become friends with, he would regularly walk into their office and ask them to “tell me something I don’t know.”  One former clerk, Jason Murray, observed that Gorsuch would tell his clerks “If you aren’t telling me I’m wrong, you’re not doing your job.”

But Neil Gorsuch’s ability to listen extends beyond the courthouse.  Perhaps even more important than his ability to listen to legal arguments is his ability to tune into the deeper needs and concerns of those with whom he interacts, and have an uncommon thoughtfulness toward them.

I should know.  I was a classmate of Neil’s at Harvard Law School and have been a friend ever since.  When I came out to him as gay, at a time when doing so was very difficult for me, Neil was immediately and completely supportive of me.  He listened.  He didn’t change his view of me or our friendship after listening. In fact his listening, understanding and unwavering support brought us closer.  Last week, at the close of a long day of swearing-in activities and receptions, I found myself in familiar territory: sharing a drink with Neil at 10 p.m., with him asking me questions about my husband and my life.  And just listening.

Why does this matter today?  It matters because the ability to listen and understand others is an indispensable ingredient in any good judge, especially a Supreme Court Justice.  It means he can be persuaded, and does not live in a pigeonhole.

Mark Hansen, another longtime friend, jokes that Neil was born with silver hair and an inexhaustible supply of Winston Churchill quotes.  One such quote is particularly relevant today: “Courage is what it takes to stand up and speak; courage is also what it takes to sit down and listen.”  Throughout his life, Neil has displayed that courage both on and off the bench.

Now, as he sits down behind a new bench in a new courthouse, his courage to listen will be on full display.  And at a particularly fraught moment in our law and politics when people from across the ideological spectrum find it difficult to listen to each other, we have in Justice Gorsuch a judge who will carefully listen to those who come before him, consider arguments without prejudgment or bias, and go where the law leads him.

Phil is a Harvard Law School graduate and classmate of Justice Gorsuch, and is currently a corporate attorney at a New York City law firm.  He lives with his husband in Manhattan.