Reason magazine contributor Nick Gillespie recently spoke with U.S. Supreme Court Justice Neil Gorsuch about his new children’s book, Heroes of 1776: The Story of the Declaration of Independence, co-written with Janie Nitze. The conversation also touched on topics closely related to his work on the bench. While the full dialogue is well worth viewing, this edition of the Injustice System newsletter concentrates on two points that stood out to me.

Note: the rest of this article reflects the themes discussed in that interview, presented here in a reworded form to preserve the essence of the discussion while avoiding repetition of exact phrasing.

1. A Scrambled Landscape, All Across the Board

Americans are increasingly dissatisfied with the actions of the federal government, and even the Supreme Court’s standing has slipped to new lows in public opinion. Does Gorsuch see this as cause for concern? He argues that the Court is doing precisely what it should: it serves as a standard-bearer for a courteous, principled approach to ruling, even as it wrestles with the country’s toughest disputes.

“We handle the hard cases with careful deliberation,” he suggested, noting that the Court settles about the same number of cases unanimously as one might expect—roughly forty percent of the time—while acknowledging that many outcomes fall short of a simple five-to-four split. When decisions do split, he explained, half of those splits aren’t simply a left-versus-right divide; they often reflect a more complex mix of viewpoints that doesn’t fit neatly into familiar ideological labels.

Gorsuch’s personal record in criminal justice cases illustrates this point. He sometimes aligns with liberal-leaning Justice Sonia Sotomayor, yet at other times he clashes with conservative Justice Samuel Alito. That mixture demonstrates that relying on conventional political labels can obscure the real dynamics at work within the Court’s deliberations.

These observations serve as a reminder that assessing the Court solely through a left-right lens risks misunderstanding or overlooking substantial aspects of how the justices operate and decide.

There is also a video of the discussion available online for those who want to hear Gorsuch’s explanations in his own words.

2. The Enumeration…of Certain Rights

The U.S. Constitution is famous for enumerating a number of individual freedoms—speech, bearing arms, and others—that the government may not infringe. Yet the document also speaks to rights that are not explicitly listed. In fact, the Ninth Amendment states that “the enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.” Does this imply that unenumerated rights deserve the same legal regard as those that are written down?

Gorsuch is often difficult to pin down on the issue of unenumerated rights, and his latest remarks do not settle the matter. For instance, when pressed on whether America should be viewed as a libertarian project or more of a conservative or liberal one, he framed the nation as a broad, tolerant enterprise in which everyone has the right to pursue their own path and happiness—and to do so in a way that can be shared with others.

But the question remains: what is the government’s proper role in safeguarding those freedoms?

Here’s what Gorsuch told Reason:

To answer, “What rights should the government be barred from touching?” you start with the Bill of Rights. That’s your baseline. And many of the protections we care about are there—think of the First Amendment, which covers the press, the right to petition the government for grievances, and the right to assemble.

The Bill of Rights serves as a solid starting point because it lists essential liberties. But what about freedoms not explicitly spelled out there?

Throughout its history, the Supreme Court has recognized and protected unwritten rights on occasion. For example, in Pierce v. Society of Sisters (1925), the Court invalidated Oregon’s Compulsory Education Act, which required all children to attend public schools, on the grounds that it violated the unenumerated liberty of parents and guardians to direct the upbringing and education of their children. That liberty certainly falls within what the Court regards as “the things we care about,” yet it isn’t explicitly outlined anywhere in the Constitution. It remains an unenumerated right. So what does that mean for the Court’s approach to rights?

Some conservative thinkers oppose judicial recognition of unenumerated rights the moment they step outside written text, arguing that if a liberty isn’t expressly listed in the Constitution, it is not a constitutional right, regardless of what the Ninth Amendment might suggest. As for Gorsuch, his stance on incorporating unenumerated rights into constitutional protection remains somewhat unsettled, and many readers hope he will offer more explicit guidance in the future.

In short, the interview leaves unresolved questions about how unenumerated rights should be weighed alongside those expressly enumerated, inviting continued discussion about the Court’s evolving role in safeguarding liberties.