Note that Professor Somin approves of Justice Barrett's performance on the bench as a general matter:
"Overall, I think Amy Coney Barrett has been a pretty good justice since her controversial appointment just before the 2020 election. But Munoz is far from her finest hour."
This is a great summary and I particularly appreciate that it doesn't fall into the same trap in discussing originalist disagreement I see too much in public discussion -- equating being wrong or confused about originalism with being illegitimate.
If we use perceived mistakes or inconsistency in judicial philosophy as an excuse to call judicial opinions illegitimate (distinct from merely critisizing them as wrong) I fear the upshot won't be the claimed greater transparency that's often articulated as desired but justices simply being more opaque about how they think about the law.
Another fine piece that persuaded me to become a subscriber. In reading this and other Dispatch articles, the term "conservative principles" is often used. Other than than a generic presumption of skepticism of change, the term presumably refers to political and legal conservatism, and not necessarily others sorts (egs. social, economic, populist) that may overlap but are not the same. Can you point me to a Lat or Dispatch that provides a clear explanation of what that term implies.
A profound and difficult question. I think “conservative” means different things in different contexts. In constitutional law, it tends to refer to originalist and textualist approaches, as opposed to a “living constitution” perspective. I think these are “conservative” methodologies to the extent that they are retrospective (what was the original public meaning of the provision in question), as opposed to “progressive” (how can we move the law forward through interpreting this provision more flexibly, in light of contemporary realities).
Yes, but I think it's a bit more complicated. Views like that of Balkin show that there is nothing incoherent about being a liberal originalist (does he call his view living originalism or something?).
I think legal conservatives need to not only believe that as a theoretical matter the original meaning is important but that this means modern judges should in practice elevate questions of history and discerning original meaning of particular clauses/terms relative to precedent, equitable reasoning or concerns about broad values.
Indeed, I'd describe my own preferred judicial philosophy as something similar -- there is something to the idea that we should care about the original meaning but understood holistically the original meaning of the constitution intended to establish a judiciary which would interpret laws and the constitution via an evolving body of precedent and even equitable reasoning. Of course that's a dial and I don't go as far in that direction as some but I think it's accurate to say that doesn't make me a legal conservative despite the theoretical commitment to original meaning.
Justice Barrett’s 4.5 page concurrence in Rahimi should be required reading for anyone wondering about the legitimacy of originalism. Barrett writes more clearly than most and does not obfuscate -- as a result, she failed to obscure what a smoking heap of nonsensical b******t originalism is. I suppose she could’ve written, “haha, originalism is just an excuse for us to impose our policy choices on the American people,” but maybe that would be a little too candid for a SCOTUS Justice
Suppose you are correct and ultimately originalism doesn't constrain judges that much and their values and the like play a big role in what outcome they reach? So what?
If your critique is valid the originalists are engaged in the same sort of thing the living constitutionalists are doing as well. I personally prefer the values of the left but both sides are then behaving perfectly legitimately and one changes the values applied by ensuring your side appoints the justices.
On this critique why does it matter that they frame their deciscions in terms of fidelity to the original intent? That's just the conservative alternative to the kind of talk about evolving standards of decency or the other arguments the left uses to justify it's deciscions -- everyone gives arguments for their deciscions and critics always find those unpersuasive and don't believe the underlying notions are coherent.
I agree that originalism doesn't prevent judicial values from creeping in but if so nothing does and it's an even playing field.
Thank you. If it is contextual, my view as well, then human brain/mind biases, often non conscious, inform decisions -- and better understanding of that await further physical brain/mind research. and a technological breakthrough.
That's certainly true. It's a human system but that doesn't necessarily tell us its not an appropriate ideal.
Consider the idea that one should be fair in hiring or only consider an applicants ability. That leaves a whole bunch of questions unclear (is being hot ability for a PR rep? pharma rep? stripper?) and humans will inevitably incorporate some bias and value judgements into how they answer those questions but it doesn't mean that they shouldn't say they aspire to only consider ability/potential or whatever in hiring (insert your preferred norm for hiring).
It doesn't tell us it is an appropriate ideal either. I just don't think it's a reason to reject it.
For a critical take on Justice Barrett's use of history in Department of State v. Munoz, see this Volokh Conspiracy post by Professor Ilya Somin:
https://reason.com/volokh/2024/06/24/the-supreme-courts-dubious-use-of-history-in-department-of-state-v-munoz/
Note that Professor Somin approves of Justice Barrett's performance on the bench as a general matter:
"Overall, I think Amy Coney Barrett has been a pretty good justice since her controversial appointment just before the 2020 election. But Munoz is far from her finest hour."
This is a really great piece, David. Thanks.
This is a great summary and I particularly appreciate that it doesn't fall into the same trap in discussing originalist disagreement I see too much in public discussion -- equating being wrong or confused about originalism with being illegitimate.
If we use perceived mistakes or inconsistency in judicial philosophy as an excuse to call judicial opinions illegitimate (distinct from merely critisizing them as wrong) I fear the upshot won't be the claimed greater transparency that's often articulated as desired but justices simply being more opaque about how they think about the law.
Another fine piece that persuaded me to become a subscriber. In reading this and other Dispatch articles, the term "conservative principles" is often used. Other than than a generic presumption of skepticism of change, the term presumably refers to political and legal conservatism, and not necessarily others sorts (egs. social, economic, populist) that may overlap but are not the same. Can you point me to a Lat or Dispatch that provides a clear explanation of what that term implies.
A profound and difficult question. I think “conservative” means different things in different contexts. In constitutional law, it tends to refer to originalist and textualist approaches, as opposed to a “living constitution” perspective. I think these are “conservative” methodologies to the extent that they are retrospective (what was the original public meaning of the provision in question), as opposed to “progressive” (how can we move the law forward through interpreting this provision more flexibly, in light of contemporary realities).
Thank you for subscribing!
Yes, but I think it's a bit more complicated. Views like that of Balkin show that there is nothing incoherent about being a liberal originalist (does he call his view living originalism or something?).
I think legal conservatives need to not only believe that as a theoretical matter the original meaning is important but that this means modern judges should in practice elevate questions of history and discerning original meaning of particular clauses/terms relative to precedent, equitable reasoning or concerns about broad values.
Indeed, I'd describe my own preferred judicial philosophy as something similar -- there is something to the idea that we should care about the original meaning but understood holistically the original meaning of the constitution intended to establish a judiciary which would interpret laws and the constitution via an evolving body of precedent and even equitable reasoning. Of course that's a dial and I don't go as far in that direction as some but I think it's accurate to say that doesn't make me a legal conservative despite the theoretical commitment to original meaning.
Justice Barrett’s 4.5 page concurrence in Rahimi should be required reading for anyone wondering about the legitimacy of originalism. Barrett writes more clearly than most and does not obfuscate -- as a result, she failed to obscure what a smoking heap of nonsensical b******t originalism is. I suppose she could’ve written, “haha, originalism is just an excuse for us to impose our policy choices on the American people,” but maybe that would be a little too candid for a SCOTUS Justice
Suppose you are correct and ultimately originalism doesn't constrain judges that much and their values and the like play a big role in what outcome they reach? So what?
If your critique is valid the originalists are engaged in the same sort of thing the living constitutionalists are doing as well. I personally prefer the values of the left but both sides are then behaving perfectly legitimately and one changes the values applied by ensuring your side appoints the justices.
On this critique why does it matter that they frame their deciscions in terms of fidelity to the original intent? That's just the conservative alternative to the kind of talk about evolving standards of decency or the other arguments the left uses to justify it's deciscions -- everyone gives arguments for their deciscions and critics always find those unpersuasive and don't believe the underlying notions are coherent.
I agree that originalism doesn't prevent judicial values from creeping in but if so nothing does and it's an even playing field.
Thank you. If it is contextual, my view as well, then human brain/mind biases, often non conscious, inform decisions -- and better understanding of that await further physical brain/mind research. and a technological breakthrough.
Thank you. If it is contextual, which is my view, then it is subject to human brain/mind biases
That's certainly true. It's a human system but that doesn't necessarily tell us its not an appropriate ideal.
Consider the idea that one should be fair in hiring or only consider an applicants ability. That leaves a whole bunch of questions unclear (is being hot ability for a PR rep? pharma rep? stripper?) and humans will inevitably incorporate some bias and value judgements into how they answer those questions but it doesn't mean that they shouldn't say they aspire to only consider ability/potential or whatever in hiring (insert your preferred norm for hiring).
It doesn't tell us it is an appropriate ideal either. I just don't think it's a reason to reject it.