High Court Justice Spotlights Civics Education at 9th Circuit Conference

By Mark Walsh — July 18, 2017 7 min read
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San Francisco

U.S. Supreme Court Justice Neil M. Gorsuch on Monday joined the list of his colleagues—both current and retired justices—who have taken up the cause of improving civics education.

The United States has “an amazing system of law, and I wish more kids were able to see that we are able to resolve our social disputes in a peaceful way,” the newest member of the court said during an extended forum on civics education at a meeting here of judges and lawyers in the U.S. Court of Appeals for the 9th Circuit.

The 9th Circuit covers nine western states—Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington. The “circuit justice” for the court—the member of the Supreme Court who handles emergency motions from that circuit and typically addresses the annual circuit conference—is Justice Anthony M. Kennedy.

The civics program for this year’s program was designed around Kennedy’s interest in the subject. He was going to speak at the civics education portion of the program, greet winners of a student essay contest, and discuss the civics implications of the hit musical “Hamilton” with the show’s director and producer.

But sometime earlier this month, while Kennedy and his wife, Mary, were in Salzburg, Austria, where the justice has long had a summer teaching gig, Mary Kennedy fell and broke her hip. Kennedy had to cancel his long-planned appearance at the 9th Circuit to help her recuperate.

Gorsuch, a former law clerk for Kennedy who joined the high court in April, agreed to be a last-minute substitute at the civics panel and some other conference events.

“When Justice Kennedy asked me if I would fill in for him, I was delighted to do so,” Gorsuch said. “This is a topic that Justice Kennedy and I share in common, and have a great passion for and interest in. I appreciate your willingness to put up with a rookie.”

A Plurality of Justices

Civics education has become somewhat of a popular cause among the members of the Supreme Court. Justice Sandra Day O’Connor is most prominent, having founded a widely acclaimed organization called iCivics after she left the court in 2006 that promotes games and other educational tools to promote civics learning.

Justice Sonia Sotomayor joined the board of iCivics in 2015, saying she wanted to support O’Connor’s work. Meanwhile, retired Justice David H. Souter, who left the bench in 2009 and has kept a low profile nationally, has been active in civics education efforts in his native New Hampshire.

Kennedy’s efforts on civics education have attracted less attention, especially outside his native California, but they have been significant. As far back as the period shortly after the Sept. 11, 2001, terrorists attacks on the United States, Kennedy developed a curriculum to promote democratic values.

Four years ago, Kennedy released a lengthy list of works recommended for young people called “Understanding Freedom’s Heritage: How to Keep and Defend Liberty.”

Besides works by Plato, Cicero, Shakespeare, the Founding Fathers, Abraham Lincoln, Mark Twain, Ronald Reagan, and others, Kennedy’s list has what the short introduction calls “idiosyncratic choices.” These include Lou Gehrig’s farewell to baseball, Don McLean’s song “American Pie,” and specified scenes from such films as “To Kill a Mockingbird,” “A Few Good Men,” and “Legally Blonde.” (Kennedy once remarked that he was struck that law students overseas had told him they were inspired to pursue law school by the lighthearted film.)

Also in 2013, at the federal courthouse in Kennedy’s hometown of Sacramento, Calif., the Justice Anthony M. Kennedy Library and Learning Center opened to serve as the home for various civics and educational programs.

Civics “is very much a priority for Justice Kennedy and it’s a priority for us,” Judge Sidney R. Thomas, the chief judge of the 9th Circuit court, said at Monday’s forum.

Games, Contests, and a ‘Shot in the Arm’

During the forum, Gorsuch praised O’Connor’s iCivics program, particularly a game called “Supreme Decision,” which puts students in the role of a law clerk who must advise his or her justice how to vote in a case about student rights.

“The other justices have split 4-4, so everything has come down to this,” said Gorsuch, who may have found himself in that position on several cases after the high court had gone more than a year with only eight members after the February 2016 death of Justice Antonin Scalia.

“Now, my law clerks love this game because it kind of intimates [that] the clerk makes up [the justice’s] mind on how the case comes out,” Gorsuch said with a grin. “But that’s not what I think is great about it.”

“What I think is great about it is it exposes [participants] to the way we judges think and go about making legal decisions,” he said. “Through the adversarial process, through listening to one another, through different points of view, and recognizing that the way to get to the best answer is by listening and engaging with others.”

The 9th Circuit conference’s civics discussion included presentations by judges from within the circuit and from elsewhere around the country about novel methods to engage young people to learn about the court system. These include websites, students’ visits to courtrooms, judges’ visits to classrooms, and even what one judge called a “court camp,” which is really a civics, law, and leadership summer camp coming up at Brigham Young University in Provo, Utah.

One popular civics idea among courts and bar associations is the old-fashioned student essay contest. On Monday, Gorsuch helped celebrate the winners of the 9th Circuit’s contest, which this year was inspired by the 75th anniversary of Executive Order 9066 by President Franklin D. Roosevelt, which led to the internment of Japanese citizens on the West Coast and the Supreme Court’s decisions upholding the policy, including in Korematsu v. United States.

(Earlier in the day, the conference held a poignant panel discussion on those cases that included Karen Korematsu, a daughter of Fred Korematsu, the lead challenger of internment.)

Gorsuch lauded essay winners Olivia Colleen Tafs of West Anchorage High School in Anchorage, Alaska, the winner of the written essay contest, and Joshua Riel, of the Las Vegas Academy of the Arts, who won the video essay contest. The justice didn’t show any reaction when each student read from or played their essays, which each drew disapproving parallels between the World War II internment policy and President Donald Trump’s executive order temporarily limiting immigration from six predominantly Muslim countries, a challenge of which is pending before the justices.

Without referencing those passages of the students’ essays, Gorsuch said the essay participants’ work was “very heartening.”

“It’s like a shot in the arm, a Vitamin B shot, to see people like this,” he said.

The Room Where ‘Hamilton’ Panel Happens

Gorsuch enthusiastically substituted for Kennedy in other parts of the 9th Circuit program, including helping to preside over a naturalization ceremony in which 20 immigrants became U.S. citizens in front of conference participants.

But Gorsuch bowed out of one part of the civics education program—a segment devoted to the hit musical “Hamilton.”

The segment seemed to have been especially built around Kennedy’s enthusiasm for the Lin-Manuel Miranda musical about Alexander Hamilton. Organizers showed a clip from last year’s 9th Circuit conference in Montana, where Kennedy had recounted his initial trepidation about seeing the show when his grandchildren had warned him that the two-hour musical was delivered largely in a rap or hip-hop style. Still, the Kennedy family saw the show on Broadway, and the justice was hooked.

Sitting in for Kennedy at Monday’s panel was Chief Judge Thomas and Judge M. Margaret McKeown of the 9th Circuit, both of whom had also seen the hit show. (A road company is currently playing in San Francisco, though McKeown made clear she had seen the original Broadway production with the original cast, “for an undisclosed amount of money.”)

Thomas said his and McKeown’s substitution on the panel “is like going to a play and getting the understudy. ‘Tonight the part of Justice Kennedy is going to be played by us.’”

The other participants on the lively panel where “Hamilton” director Thomas Kail and producer Jeffrey Seller, who said that among the lessons of the show, for young people and others, was that it was important to be a participant in the political process, and that the current political climate was “a particularly important time to participate.”

McKeown said she didn’t especially care for the name “civics education” because it suggests a helping of “castor oil” for children. But “Hamilton” is “a great teaching tool,” she said, “and has really had an impact far beyond anyone’s imagination.”

Photos: Top, Robert A. Katzmann, left, the chief judge of U.S. Court of Appeals for the 2nd Circuit, in New York City, left, speaks as Sidney R. Thomas, center, the chief judge of the U.S. Court of Appeals for the 9th Circuit, in San Francisco, and U.S. Supreme Court Justice Neil M. Gorsuch, right, listen during a program on civics education at the 2017 9th Circuit judicial conference in San Francisco on July 17.--Jeff Chiu/AP

Bottom, a group of new U.S. citizens take the oath from U.S. District Judge Timothy M. Burgess, top video screen, during a naturalization ceremony at the 9th Circuit judicial conference in San Francisco on July 17 Justice Gorsuch addressed the new citizens after they took their oath. --Jeff Chiu/AP

A version of this news article first appeared in The School Law Blog.