Bench Memos

Law & the Courts

Bashing Judge Barrett

In an incompetent essay in Commonweal, philosophy professor Gregory Bassham tries to bash Judge Amy Coney Barrett by contending that she and Justice Scalia “have very different views on the issues of judicial restraint and respect for legal precedent.” Barrett, Bassham contends, holds a “judicial philosophy outside the mainstream, … a fringe view that even Scalia would reject.”

Bassham provides no hyperlinks in his essay, so it’s sometimes not clear what he purports to be summarizing. In any event, he gets every single one of his charges wrong. Let’s march through them in order:

1. Bassham writes:

For Scalia, the central virtue of originalism as a method of interpreting the Constitution is the way it limits judicial policymaking by unelected and tenured judges, thus honoring the basic democratic values of our constitutional tradition. By contrast, Barrett argues that it was a mistake for “early originalists” such as Scalia to stress the importance of judicial restraint. In her view, the original textual meaning of the Constitution is the law, period. Originalist judges have a sworn duty to uphold the law—even if that requires activist rulings, which may be deeply unpopular and invite frequent collisions with Congress and other democratically accountable legislative bodies.

Bassham posits a false “contrast” between Scalia’s views and Barrett’s. One of Scalia’s frequent criticisms of “living constitutionalism” and other alternatives to originalism is that they “can take away old rights as well as create new ones.” (The Essential Scalia, p. 16.) Insofar as Bassham is presenting Scalia as, above all, an apostle of judicial restraint, he is missing that Scalia was as adamant about enforcing the rights that are in the Constitution as he was about not inventing rights that aren’t in it.

I don’t know what Bassham is referring to in stating that “Barrett argues that it was a mistake for ‘early originalists’ such as Scalia to stress the importance of judicial restraint.” Barrett observes (in “Countering the Majoritarian Difficulty”) that originalism “is associated with judicial restraint in the popular consciousness because it emerged in the 1980s as a conservative response to the perceived activism of the Warren and Burger Courts.” That observation strikes me as correct as a historical matter.

In that same article, Barrett writes:

For Justice Scalia and those who share his commitment to uphold text, the measure of a court is its fairminded application of the rule of law, which means going where the law leads.

If Bassham has any support for his suggestion that Scalia didn’t believe that “the original textual meaning of the Constitution is the law” and that originalist judges “have a sworn duty to uphold the law,” I’d be eager to see it.

Bassham’s claim that Barrett’s originalism “requires activist rulings” is sloppy wordplay at best. When Barrett states that “deference to a democratic majority should not supersede a judge’s duty to apply clear text,” she is repeating Scalia, not departing from him.

2. Bassham asserts that one “clear example” of Barrett’s supposed “activist bent” is her “rejection of the long-standing view that courts, in interpreting statutes, should view themselves as ‘faithful agents’ of the relevant legislative bodies.” More fully:

Since lawmaking powers have been granted to legislatures, not courts, in our constitutional system, judges have been seen as properly playing a subordinate role in furthering and implementing the rule-making prerogatives of legislatures. Barrett once accepted this traditional view, but recently renounced it in a 2017 article “Congressional Insiders and Outsiders.” When interpreting statutes, judges should see themselves as “agents of the people,” not of legislatures, she argued. They can best carry out this populist role by enforcing statutory words in their “plain,” ordinary meanings, even when such meanings were clearly not intended or desired by the lawmakers, and even when such readings lead to apparent absurdities or gross injustices. (Why such absurdities and injustices are thought to be in the interest of “the people” is unexplained.) The upshot is that courts would see themselves not as partners and honest agents of legislative bodies, but as adversarial watchdogs.

Far from this “subordinate role” of the judiciary being “long-standing” and “traditional,” Barrett, in the very article that Bassham is invoking, attributes it to a “process-based turn in statutory interpretation” that took place in the last decade. She makes clear that Scalia rejected that view of the judiciary’s role. The position of Barrett’s that Bassham would have his readers think is different from Scalia’s is in fact Scalia’s:

Textualists have routinely described courts as the faithful agents of Congress. I have done it myself. Justice Scalia, however, put it differently. He took a relatively strong view of legislative supremacy, consistently arguing that courts must follow Congress’s will, as expressed in the text, and denying any judicial power to alter the text. At the same time, he did not think that a commitment to legislative supremacy casts courts in the role of Congress’s agents. He characterized courts as agents of the people rather than agents of Congress, and he depicted the duty of fidelity as one owed to enacted texts rather than to the legislature itself.

3. Bassham contends that another “major point of disagreement between Barrett and Scalia “is the importance of respecting prior court decisions that are mistaken according to public meaning originalists. But Barrett has vigorously defended the traditional principle of stare decisis (adherence to precedent) that Scalia endorsed. Bassham’s claim to the contrary rests on a series of errors or deceptions.

a. Bassham contends that Barrett “criticized Scalia for his ‘faint-hearted’ originalism, and instead argued for a ‘fearless’ originalism that recognizes no legal duty to preserve non-originalist precedent, no matter how entrenched or widely accepted it may be today.” I gather that he is purporting to present Barrett’s views in “Originalism and Stare Decisis,” but he botches them badly.

Barrett sets forth her thesis in that article quite clearly: “I argue that while [Scalia] did treat stare decisis as a pragmatic exception to originalism, that exception was not nearly so gaping as his ‘faint-hearted’ quip suggests.” Nowhere in that article does she “criticize[] Scalia for his ‘faint-hearted’ originalism.”

Nor does she argue for a “fearless” originalism—or, indeed, argue in that article for any theory of the relationship between originalism and precedent. She instead discusses the competing views of different originalists. It’s in that context that the word “fearless” appears once in her article, in a footnote quoting Randy Barnett:

See, e.g., Randy E. Barnett, It’s a Bird, It’s a Plane, No, It’s Super Precedent: A Response to Farber and Gerhardt, 90 Minn. L. Rev. 1232, 1233 (2006) (insisting that while “faint-hearted originalists” are willing to make a pragmatic exception to stare decisis to avoid political suicide, “[o]ther originalists like Mike Paulsen, Gary Lawson, and myself—call us ‘fearless originalists,’ . . .—reject the doctrine of stare decisis in the following sense: if a prior decision of the Supreme Court is in conflict with the original meaning of the text of the Constitution, it is the Constitution and not precedent that binds present and future Justices.” [Emphasis added.]

I have to wonder whether Bassham didn’t recognize that “and myself” was part of Randy Barnett’s quote speaking of himself and whether he instead misattributed it to Amy Coney Barrett. If so, it wouldn’t be the worst of his errors.

b. Citing “Precedent and Jurisprudential Disagreement,” Bassham complains that Barrett “supports only a ‘weak’ doctrine of adherence to precedent in constitutional cases.” But Barrett is defending the Court’s traditional principle against those academics who “have urged the Court to abandon its weak presumption of stare decisis in constitutional cases in favor of a more stringent rule.” (See substantial excerpts here.) Her position is the same as Justice Scalia’s and of every sitting justice except Justice Thomas.

Bassham clips out of context Barrett’s statement, “I tend to agree with those who say that a justice’s duty is to the Constitution and that it is thus more legitimate for her to enforce her best understanding of the Constitution rather than a precedent she thinks clearly in conflict with it.” As I have explained, the entire thrust of Barrett’s article is to defend the Court’s traditional principle of stare decisis on constitutional issues—which requires a “compelling” reason to overturn precedent and which “need[s] to take account of reliance interests”—on the ground that it “promotes doctrinal stability while still accommodating pluralism on the Court.”

Barrett goes on to address the “institutional legitimacy” arguments made by those who favor “a significantly stronger role for stare decisis” than the Court has adopted. She argues that the Court’s longstanding approach “protects institutional legitimacy and reliance interests more than is commonly supposed.” It’s in the narrow context of addressing legitimacy arguments that Barrett offers the tentative (“I tend …”) observation that Bassham mispresents as though it were a comprehensive statement of her position on precedent.

c. Here’s how Bassham brazenly summarizes Barrett’s supposed position on precedent in her “Congressional Originalism” article:

As Barrett explains in a 2016 article co-authored with John Copeland Nagle, mistaken constitutional rulings should at best be considered “provisional law” that can be overruled when the time is ripe. Even in cases of so-called erroneous “super precedents” that no sensible judge would now consider overruling, judges have no duty to treat such holdings as legally valid or binding. Their status as “law,” Barrett claims, is wholly derived from the widespread support they currently enjoy. Should that support ever significantly wane, judges should, if squarely confronted with the issue, boldly overrule the mistaken rulings.

Try to reconcile that summary with these passages from Barrett’s article:

[O]riginalists, like their counterparts, recognize that there are some mistakes whose correction would do far more harm than good.

Institutional features of Supreme Court practice permit all Justices to let some sleeping dogs lie, and so far as we are aware, no one has ever argued that a Justice is duty-bound to wake them up. Such a claim would be extraordinary, for the Court’s agenda-limiting rules are well within its authority to adopt.

If a nonoriginalist precedent is truly part of the constitutional fabric, the Court will not be asked to reconsider it, nor does a commitment to originalism require that any Justice volunteer to do so.

Focusing on the source of super precedent’s force reveals a point that is entirely overlooked in the stare decisis debate: the rules of adjudication contemplate the presence of mistaken constitutional interpretations that the Court has no obligation to correct. They promote stability by instructing the Court at almost every stage of the process not to pick a fight.

In short, Bassham’s account of Barrett’s article is a gross distortion.

Bottom line: Bassham utterly fails to show that Barrett’s views on these matters are any different from Scalia’s.


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