Justice Gorsuch Should Take Inspiration From John Adams (Perspective)

Editor’s Note: The author is the Louis Stein Chair at Fordham Law School, where he directs the Louis Stein Center for Law and Ethics.

As young lawyers, John Adams and Neil Gorsuch expressed very different views of the lawyer’s role in society. Has Justice Gorsuch come around?

Future president John Adams was tested as a young lawyer when British soldiers, about to stand trial for killing colonists in the Boston Massacre, had trouble securing legal assistance because of the widespread popular animosity against them. Adams stepped up, recognizing that the legitimacy of the colonists’ call for independence required them to show that they could deliver justice, and that just trials require lawyers.

Adams and his co-counsel won acquittals of six soldiers and manslaughter convictions of the other two, who had fired directly into the crowd. He later wrote that this work, despite the anxiety and obloquy it produced, was “one of the most gallant, generous, manly and disinterested Actions of my whole Life, and one of the best Pieces of Service I ever rendered my Country.”

There are other well-known stories of lawyers who defended unpopular clients. In the great American novel To Kill a Mockingbird, Atticus Finch’s white neighbors in a pre-World War II Alabama town cannot understand his willingness to defend a young Black man accused of raping a white woman. More recently, the movie Bridge of Spies tells the story of James Donovan, a New York lawyer (played by Tom Hanks) who controversially defends a Russian spy at the height of the Cold War.

But it is Adams’s defense of the British soldiers that is invoked as the foremost real-life expression of lawyers’ duty to defend the vilified. A decade ago, the American Civil Liberties Union and the National Association of Criminal Defense lawyers gave the name “the John Adams Project” to their efforts to secure counsel for Guantanamo detainees, explaining: “[W]hen our constitutional values are most seriously threatened, we believe that we must step into the fray. That’s what we’re here for, what we’ve always done for generations before us, and what will be certainly expected from us for generations to come. Our founders did as much – like John Adams. . . [and] would expect nothing less from 21st century Americans.”

Others in the bar – including lawyers at Wall Street law firms working without a fee – joined legal efforts on behalf of Guantanamo detainees, without regard to the inevitable public disapproval. The Wall Street Journal was among those questioning the law firms’ patriotism. So was a public official, Charles D. Stimson, the deputy assistant secretary of defense for detainee affairs. Stimson gave a radio interview encouraging CEOs “to make those law firms choose between representing terrorists or representing reputable” corporations. Soon after, in the wake of a barrage of criticism from the legal community, Stimson resigned his position.

A January 2006 email released in connection with his confirmation hearings showed that the future Justice Gorsuch – then serving as a high-ranking official in the U.S. Department of Justice – sided with the lawyers’ critics who disparaged the principle for which young John Adams had put his career on the line. The future Justice forwarded to an acquaintance an article listing the law firms “working for the release of enemy combatants” and affirmed his acquaintance’s response that: “The great fallacy here . . . is that this work helps to protect the rights of Americans. . . . [T]he only rights at issue here are those of suspected alien terrorist enemies.”

At his confirmation hearings, then-Judge Gorsuch insisted that the email did not reflect his true values. He told a Senator who questioned him about the email: “The email you are referring to is not my finest moment blowing off steam with a friend privately. The truth is, I think my career is better than that. When I have seen individuals who have needed representation, as a judge when I have gotten handwritten pro se filing, [when] I have seen something that might have merit in it, I picked up the phone and have gotten a lawyer for that person. I would like to think that my career taken as a whole, Senator, represents my values appropriately.”

In the coming years, Justice Gorsuch will likely have many opportunities to demonstrate the sincerity of his explanation, to express his understanding of lawyers’ role in our democracy and to show where he stands on the core, traditional values of the legal profession. Here’s hoping that, as a self-proclaimed “originalist”, he finds some inspiration in John Adams’s early example.

This column does not necessarily reflect the opinion of the editors at Big Law Business or its parent owners, Bloomberg BNA and Bloomberg LP.