Bench Memos

Law & the Courts

A Survey of Neomi Rao’s Constitutionalist Philosophy

Neomi Rao testifies before the Senate Judiciary Committee, February 5, 2018. (Screengrab via C-SPAN)

Throughout her career as a constitutional law scholar, Neomi Rao has made clear that she embraces the text and original public meaning of the Constitution, that she is exceptionally strong on separation of powers issues, and that she understands the proper role of judges in our form of government.

As a fellow former law clerk to Justice Clarence Thomas, I am privileged to have known Neomi for many years, and I have been continually impressed by her work.  But for those who are less familiar with that work, below are some excerpts that provide a sense of how she views the Constitution and the role of judges.  She will be a superb addition to the D.C. Circuit, and I eagerly anticipate her confirmation.

Political Philosophy of Next President Makes a Difference, Richmond Times Dispatch, Oct. 7, 2008, at A11.

Judicial independence is not carte blanche to spend a lifetime legislating from the bench. The work of the Supreme Court is too difficult and important to be left to a political philosophy of empathy. These judgments of the heart have little place in a society ruled by laws and not by men.

Administrative Collusion: How Delegation Diminishes the Collective Congress, 90 N.Y.U. L. Rev. 1463 (2015).

In arguing against the conventional legal wisdom that Congress is incentivized to protect its legislative power and avoid excessive delegations, Rao relies extensively on James Madison’s framework.  See footnotes 14, 101, 139, 141-47, 189, & accompanying text.

Limits on delegation are fundamental to the constitutional structure, yet expansive delegations provide the foundation for the modern administrative state. The judicial tolerance for such delegations depends on a practical view, that they are essential in a complex society, and also on a conventional legal view, that structural checks and balances will deter excessive delegations because Congress will jealously guard its lawmaking power from the executive. . . . [T]he conventional legal understanding is wrong, or at least incomplete. Delegation undermines separation of powers, not only by expanding the power of executive agencies, but also by unraveling the institutional interests of Congress.

On the Use and Abuse of Dignity in Constitutional Law, 14 Colum. J. Eur. L. 201 (2008).

[T]he European or postwar conceptions of human dignity are unlikely to occupy a central place in the United States because there is no explicit textual commitment to ‘human dignity’ in the United States Constitution. In a constitutional system that generally favors textualism and still has a strong formalist tradition, this is an infirmity for the principle. The lack of a textual hook will make it more difficult for the Supreme Court to develop ‘human dignity’ as a free standing right and to retain legitimacy with regard to the creation or development of such a right.

Of course, protection or respect for human dignity could be developed as an unenumerated right similar to ‘privacy.’ [footnote omitted] Human dignity could be ‘discovered’ in ‘emanations’ from various constitutional provisions. . . .

Even such judicial willfulness, however, may be insufficient to sustain a right to human dignity because of the truly open-ended nature of the concept. The judicially recognized unenumerated rights are fairly limited, and precedents based on this type of reasoning are subject to significant criticism. Moreover, even if the Supreme Court were to recognize a more robust form of human dignity as a ‘right,’ the lack of textual grounding will pose recurring questions of legitimacy.

Like Scalia, the Law School at George Mason U. Has a Maverick Streak, Dean Says, Washington Post, Apr. 5, 2016 (with Henry N. Butler).

In a legal culture rife with legal realism — the belief that the law is what the judge ate for breakfast — Justice Scalia restored the study of law as law. . . . According to some judges and law professors, the laws and the Constitution serve as only an inkblot for public values, norms, and the promotion of justice. By contrast, Justice Scalia championed the idea that judges must strive to serve as faithful interpreters of the actual law. When interpreting a statute, he looked to the fair meaning of its words, not the intentions of congressmen. When interpreting the Constitution he sought to ascertain its original meaning, rather than grasp at its penumbras.

Remembering Justice Antonin Scalia, Antonin Scalia Law School News, Mar. 1, 2016. 

Even those judges, lawyers, and law professors who disagreed with [Justice Scalia’s] methods of interpretation had to take seriously the text of statutes and the original meaning of the Constitution.

Why Congress Matters: The Collective Congress in the Structural Constitution, 70 Fla. L. Rev. 1 (2018). 

Rao dedicated an entire law review article last year to analyzing “the meaning of ‘legislative power’ by examining the collective Congress in the text, structure, and history of the Constitution.” She discussed the Framers’ philosophical underpinnings in order to “recover[] the meaning and importance of the ‘legislative power’ vested in Congress.” She identified what had been lost and who had lost it:

Progressives who favored regulation over legislation understood that this was inimical to our constitutional form of government. They offered expertise, efficiency, and flexibility as a replacement to the old constitutional forms of separation of powers. Yet lawmaking by a representative legislature offers other values that are now often forgotten.​

The President’s Sphere of Action, 45 Williamette L. Rev. 527 (2009).

In this 29-page law review article discussing the president’s power to interpret the law, Rao made 20 references to the Framers or Founders generally and eight references to Madison specifically in crafting her argument. See footnotes 3-5, 15, 34, 37, 94, 120 (Framers), 100 (Founders), 3-4, 15-16, 47, 97, 116, 120 (Madison) & accompanying text.

The Framers of our Constitution . . . . carefully delineated the legislative, executive and judicial powers and then explicitly provided mechanisms for each branch to thwart the ambitions of the others. The Constitution confers on each branch the means of self-defense commensurate to its constitutional powers.

Taking a Constitutional, Commentary, Jan. 2010 (reviewing Seth Lipsky, The Citizen’s Constitution (2009)). 

Rao on the do-over of President Obama’s oath of office in 2009:

Whether or not this do-over was legally required for Obama to take office, the decision to take the oath again suggests the importance of the specific requirements of the Constitution: fidelity to its simple but powerful commands. The chief justice misplaced just one word. But the Constitution does not require the president to take something like the oath of office or pretty close to the oath of office. The Constitution prescribes a particular oath for the president, and Obama made sure to swear that precise oath, as opposed to something very close to that oath.

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Carrie Severino is chief counsel and policy director to the Judicial Crisis Network.

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