Scholarship
Academic writings and law review articles by then-Professor Amy Coney Barrett at Notre Dame Law School.
-
Originalism and Stare Decisis
Justice Scalia was the public face of modern originalism. Originalism maintains both that constitutional text means what it did at the time it was ratified and that this original public meaning is authoritative. This theory stands in contrast to those that treat the Constitution's meaning as susceptible to evolution over time. For an originalist, the meaning of the text is fixed so long as it is discoverable.
The claim that the original public meaning of constitutional text constitutes law is in some tension with the doctrine of stare decisis. Stare decisis is a sensible rule because, among other things, it protects the reliance interests of those who have structured their affairs in accordance with the Court's existing cases. But what happens when precedent conflicts with the original meaning of the text? If Justice Scalia is correct that the original public meaning is authoritative, why is the Court justified in departing from it in the name of a judicial policy like stare decisis?
-
Countering the Majoritarian Difficulty
In Our Republican Constitution, Randy Barnett argues that the United States Constitution rests on a foundation of individual rather than collective popular sovereignty. Grounding the legitimacy of the government in the authority given it by each individual rather than by the People as a whole echoes the thesis, advanced in Barnett's prior work, that the government must justify incursions upon individual liberty. If the People as a body are sovereign and the Constitution is designed to facilitate democratic self-governance, legislation is presumptively legitimate because it represents the sovereign will of the democratic majority. If the individual is sovereign, by contrast, legislation does not represent the sovereign will but rather the work product of government officials who serve as the agents of individual sovereigns. The citizen is thus positioned to demand that his agents explain why legislation lies within the authority he has constructively given them to secure his natural rights.
Courts play an important role under Barnett's Republican Constitution. They provide the forum in which citizens seek protection of their natural rights from legislative infringement. Like legislators, judges serve as agents of each individual sovereign, and judicial deference to democratic majorities is “misguided and inconsistent with the most basic premises of the Constitution” (p. 18). Rather than treating legislation as presumptively constitutional, they must treat the citizen’s challenge as presumptively correct. And on the merits, they must critically rather than deferentially assess the question whether the legislature has exceeded its authority, which is limited to regulation securing the “equal protection of the rights of each and every person” (p. 25). Barnett thus calls for, among other things, a return to the pre-New Deal approach to the Due Process Clause.
-
Congressional Insiders and Outsiders
When Justice Antonin Scalia began writing about statutory interpretation, he attacked the then-dominant proposition that the point of statutory interpretation is to identify and enforce Congress's unenacted purposes. He argued that the existence of congressional intent is pure fiction and that it would not control even if it could be found. Because the Court cited legislative history as authoritative evidence of legislative intent, he rejected its use as illegitimate. He focused on the text and insisted that its meaning controlled. His arguments were so successful that today, one would be hard pressed to find anyone willing to say that a court should depart from statutory text to better serve Congress's purpose. There is a general consensus that the text constrains.
With everyone talking text and rejecting intent, it can sometimes seem that almost all of the differences lie in application. Judges might have different thresholds for ambiguity, for example, or disagree about the utility of canons. Such disagreements are important and can affect the outcome of cases, but they do not inevitably reflect conflicting first-order principles about the aims of statutory interpretation. Fundamental differences, however, do remain, and the process-based turn in statutory interpretation underscores the point.
-
Congressional Originalism
Precedent poses a notoriously difficult problem for originalists. Some decisions thought inconsistent with the Constitution's original public meaning are so well baked into government that reversing them would wreak havoc. Adherence to originalism arguably requires, for example, the dismantling of the administrative state, the invalidation of paper money, and the reversal of Brown v. Board of Education. Originalists have been pressed to either acknowledge that their theory could generate major disruption or identify a principled exception to their insistence that judges are bound to enforce the Constitution's original public meaning.
Commentators, who typically approach matters with the courts in mind, tend to frame this problem as one for a Supreme Court Justice. It might, however, be more acute for a member of Congress. The standard hypothetical posits an originalist Justice forced to choose between principled adherence to original meaning and compromised adherence to precedent. Yet at least in the case of so-called "super precedents"-decisions that no serious person would propose to undo even if they are wrong-an originalist justice will not have to choose between fidelity and faint-heartedness. No one is likely to ask the Supreme Court to rethink arguably nonoriginalist decisions like the constitutionality of the Social Security Administration, paper money, or segregated public schools-and if anyone did ask, the Court would deny certiorari. An originalist member of Congress, by contrast, might have a harder time avoiding the conflict between original meaning and precedent.
-
Suspension and Delegation
After the Japanese bombed Pearl Harbor, President Franklin D. Roosevelt suspended the privilege of the writ of habeas corpus in Hawaii, thereby empowering authorities to preventatively and indefinitely detain anyone suspected of endangering the public. He relied on a forty-one-year-old statute authorizing the President to suspend the privilege in that territory whenever he determined that a rebellion or an invasion had occurred and that protecting the public safety required it. This statute was a remarkable delegation of authority to the Executive insofar as it enabled him to both trigger and define the scope of his own emergency power. It does not stand in isolation, for the seven federal suspension statutes enacted since the Civil War have all delegated suspension power to the President.
A sweeping assignment of suspension authority to the President sits uneasily with the widespread insistence of scholars and judges that for formal and functional reasons, suspension is an exclusively legislative task. The chief function of the writ is to protect from executive detention in violation of civil rights. Because a suspension of the writ's privilege grants the executive emergency power to detain in violation of civil rights, giving the President charge of the decision to suspend concentrates tremendous power in his hands. Building on settled English practice, our constitutional tradition has almost unfailingly treated the suspension decision as belonging to the legislature, a body that is more deliberative, more politically representative, and less biased in favor of exercising emergency power in a national security crisis. Broad delegations of suspension authority to the President arguably undercut the protection offered by this institutional arrangement. While there is virtual unanimity in the view that the Constitution vests Congress alone with the power to suspend, the question whether Congress is constrained in its ability to delegate this power is difficult and unsettled.
-
Precedent and Jurisprudential Disagreement
Over the years, some have lamented the Supreme Court's willingness to overrule itself and have urged the Court to abandon its weak presumption of stare decisis in constitutional cases in favor of a more stringent rule. In this Article, I point out that one virtue of the weak presumption is that it promotes doctrinal stability while still accommodating pluralism on the Court. Stare decisis purports to guide a justice's decision whether to reverse or tolerate error, and sometimes it does that. Sometimes, however, it functions less to handle doctrinal missteps than to mediate intense disagreements between justices about the fundamental nature of the Constitution. Because the justices do not all share the same interpretive methodology, they do not always have an agreed-upon standard for identifying "error" in constitutional cases. Rejection of a controversial precedent does not always mean that the case is wrong when judged by its own lights; it sometimes means that the justices voting to reverse rejected the interpretive premise of the case. In such cases, "error" is a stand-in for jurisprudential disagreement.
The argument proceeds in three parts. After Part I explains the general contours of stare decisis, Part II develops the thesis that, at least in controversial constitutional cases, an overlooked function of stare decisis is mediating jurisprudential disagreement. Identifying this function of stare decisis offers a different way of thinking about what the weak presumption accomplishes in this category of precedent. On the one hand, it avoids entrenching particular resolutions to methodological controversies. This reflects respect for pluralism on and off the Court, as well as realism about the likelihood that justices will lightly let go of their deeply held interpretive commitments. On the other hand, placing the burden of justification on those justices who would reverse precedent disciplines jurisprudential disagreement lest it become too disruptive. A new majority cannot impose its vision with only votes. It must defend its approach to the Constitution and be sure enough of that approach to warrant unsettling reliance interests. Uncertainty in that regard counsels retention of the status quo.
-
Substantive Canons and Faithful Agency
Federal courts have long employed substantive canons of construction to interpret federal statutes. Some substantive canons express a rule of thumb for choosing between equally plausible interpretations of ambiguous text. The rule of lenity is often described this way: it directs that courts interpret ambiguous penal statutes in favor of the defendant. Other canons are more aggressive, permitting a court to forgo a statute's most natural interpretation in favor of a less plausible one more protective of a particular value. For example, a court will strain the text of a statute to avoid deciding a serious constitutional question, and absent a clear statement, it will not interpret an otherwise unqualified statute to subject either the federal government or the states to suit. While courts and commentators sometimes seek to rationalize these and other substantive canons as proxies for congressional intent, it is generally recognized that substantive canons advance policies independent of those expressed in the statute.
The courts' adoption of more aggressive substantive canons poses no problem of authority for dynamic statutory interpreters, who conceive of courts as the cooperative partners of Congress and treat the protection of social values as part of the courts' task in statutory interpretation. It poses a significant problem of authority, however, for textualists, who understand courts to be the faithful agents of Congress. A court applying a canon to strain statutory text uses something other than the legislative will as its interpretive lodestar, and in so doing, it acts as something other than a faithful agent. The application of substantive canons, therefore, is at apparent odds with the central premise from which textualism proceeds. Textualists occasionally note this tension. Nonetheless, they continue to accept substantive canons, and no one has examined whether substantive canons can be reconciled with a theory of statutory interpretation animated by a strong commitment to legislative supremacy. This Article seeks to answer that question.
-
The Interpretation/Construction Distinction in Constitutional Law
One of the most interesting developments in the constitutional theory of new originalism is its exploration of the distinction between interpretation and construction in constitutional law. Within this framework, “interpretation” refers to the process of determining a text's linguistic meaning, and “construction” refers to the process of giving the text legal effect. The distinction plays out in the new originalist approach to the Constitution as follows. The defining characteristic of new originalism is its argument that the original public meaning of the Constitution's text should control its interpretation. Yet new originalists do not contend that the Constitution's original public meaning is capable of resolving every constitutional question. The Constitution's provisions are written at varying levels of generality. When the original public meaning of the text establishes a broad principle rather than a specific legal rule, interpretation alone cannot settle a dispute. In that event, the need for construction arises. The First Amendment is a classic example. As Larry Solum observes, that amendment “provides for 'freedom of speech' and forbids its 'abridgement,'' but this does not create a bright line rule, and as a consequence most of the interesting work in free speech doctrine must be done by construction rather than interpretation.” Many, though not all, new originalists accept constitutional construction as a means of dealing with constitutional ambiguity and vagueness.
The new originalist move toward the interpretationconstruction distinction has opened space for agreement between originalists and nonoriginalists.
-
Procedural Common Law
There has been no shortage of efforts to justify the common lawmaking powers of the federal courts. In the course of these efforts, it is commonplace to underscore three features of the common law that federal courts develop without congressional authorization. First, this law "is truly federal law in the sense that it is controlling in... actions in state courts as well as in federal courts."' Second, to the extent that the federal courts proceed without congressional authorization, federal common law is "specialized." It is confined, at least as a matter of doctrine, to several well-recognized enclaves, such as interstate disputes, international relations, admiralty, and proprietary transactions of the United States. Third, Congress can always abrogate it.
Despite the consistent emphasis on these characteristics of federal common law, a large body of federal common law exists that does not embody them. This body of law can be characterized as "procedural common law"-common law that is concerned primarily with the regulation of internal court processes rather than substantive rights and obligations. With few exceptions, this body of law falls outside of the traditional definitions of federal common law. Procedural common law does not generally bind state courts; though developed without congressional authorization, it falls outside of the traditionally recognized enclaves of federal common law; and Congress's ability to abrogate it is often called into question.' While the sources of and limits upon federal court power to develop substantive common law have received serious and sustained scholarly attention, the sources of and limits upon federal court power to develop procedural common law have been almost entirely overlooked. This Article will offer an account of the federal common law of procedure.
-
Stare Decisis and Nonjudicial Actors
In 2006, the South Dakota legislature passed a statute, since repealed, that rendered all abortion, including first trimester abortion, a crime in the state of South Dakota. At a minimum, this statute reflected South Dakota's judgment that Roe v. Wade was wrongly decided. What more this statute reflected is unclear. It may have reflected South Dakota's judgment that Roe was ripe for overruling and its desire to present the United States Supreme Court with an opportunity to do it. Or, it may have reflected less South Dakota's hope for overruling than its belief that Roe, even if affirmed, does not constrain the states from acting in accordance with their own interpretation of the Fourteenth Amendment. Whatever South Dakota's beliefs, its action throws a spotlight on the complicated relationship between the Supreme Court and nonjudicial actors. What means can the states, the Congress, the President, and even private citizens legitimately employ to express disagreement with the Supreme Court? If nonjudicial actors register such disagreement, how, if at all, should the Supreme Court take account of it? These are the kinds of questions with which this Symposium grapples.
This Introduction frames these questions by pausing to reflect upon the variety of ways in which nonjudicial actors have, over time, registered their disagreement with decisions of the United States Supreme Court. Both public officials and private citizens have battled the Court on any number of occasions since its inception, and they have employed a diverse range of tactics in doing so. They have resisted Supreme Court judgments. They have denied the binding effect of Supreme Court opinions. They have sought to overrule the Court by statute or constitutional amendment. They have sought overruling in the Court itself. They have tried to discipline the Court through jurisdictional limitations or onerous procedural regulation. And they have pressured the Court by appealing to public opinion. Some of these means, like constitutional override of a disfavored opinion, are generally consistent with the notion that Supreme Court precedent is the law of the land. Others, like interfering with the enforcement of a Supreme Court judgment, represent a head-on challenge to the Court's authority. In what follows, I will describe some notable examples of each of these kinds of protest, noting, along the way, the problems posed by each.
-
The Supervisory Power of the Supreme Court
Relying on something it calls "supervisory power" or "supervisory authority," the Supreme Court regularly prescribes rules of procedure and evidence for inferior courts. Both scholars and the Court have treated the Court's exercises of this authority as unexceptional exercises of the inherent authority that Article III grants every federal court to regulate procedure in the course of adjudication. Article III's grant of inherent authority, however, is conventionally understood as permitting a federal court to regulate its own proceedings. Wen the Supreme Court exercises supervisory power, it regulates the proceedings of other federal courts. 'More than a reference to every court's inherent authority, therefore, is required to justify the Court's action. If the Supreme Court possesses a unique ability to regulate federal court procedure, it must be because of some unique attribute of the Supreme Court.
This Article explores a justification that may well animate the Court's assertions of supervisory power: the notion that the Court possesses supervisory power by virtue of its constitutional supremacy. Analyzing this justification requires pursuit of two questions that are wholly unexplored in the literature and case law. Does Article III's distinction between supreme and inferior courts operate only as a limit on the way that Congress can structure the judicial department, or does it also operate as a source of inherent authorityfor the Supreme Court? And assuming that the Court's supremacy grants it inherent authority over inferior courts, is supervisory power over procedure part of the authority granted?
-
Statutory Stare Decisis in the Courts of Appeals
The Supreme Court has long given its cases interpreting statutes special protection from overruling. The Court is relatively willing to overrule its constitutional precedents, because in that context, the Court reasons that "correction through legislative action is practically impossible." But the Supreme Court insists that a party advocating the abandonment of a statutory precedent bears a greater burden. In that context, the Court claims that stare decisis has "special force."' It gains this special force from the principle of legislative supremacy-the belief that Congress, rather than the Supreme Court, bears primary responsibility for shaping policy through statutory law.
The Supreme Court's cases and the literature discussing them offer two explanations for how the Supreme Court's statutory stare decisis practice honors the supremacy of the legislature. One line of thought interprets Congress's silence following the Supreme Court's interpretation of a statute as approval of that interpretation. If Congress had disagreed with the Supreme Court's interpretation, the argument goes, Congress would have amended the statute to reflect its disagreement. By failing to amend the statute, Congress signals its acquiescence in the Supreme Court's approach. According to this way of thinking, the Court's practice of giving its statutory precedent particularly forceful effect reflects its reluctance to abandon statutory interpretations that Congress, through its silence, has effectively approved. Statutory stare decisis, in other words, reflects deference to Congress's wishes.
-
Stare Decisis and Due Process
Courts and commentators have devoted a great deal of attention lately to the constitutional limits of stare decisis. The Eighth Circuit's decision in Anastasoff v. United States has sparked scholarly and judicial debate about whether treating unpublished opinions as devoid of precedential effect violates Article III. Debates have also erupted over the question whether Congress has the power to abrogate stare decisis by statute, and the related question whether stare decisis is a doctrine of constitutional stature or merely of judicial discretion.
This Article explores a different constitutional limit on the doctrine of stare decisis: the Due Process Clause.
-
Catholic Judges in Capital Cases
Here is an interesting cultural collision. The death penalty is back in fashion in our legal system. Congress has created more than sixty new capital crimes. The Attorney General has used the new laws to prosecute Timothy McVeigh and Theodore Kaczynski. The federal courts have lost some of their authority to review state executions. The Catholic Church, with no sense of timing (or a fine sense of urgency), has picked this moment to launch a campaign against capital punishment. This puts Catholic judges in a bind. They are obliged by oath, professional commitment, and the demands of citizenship to enforce the death penalty. They are also obliged to adhere to their church's teaching on moral matters.
The legal system has a solution for this dilemma-it allows (indeed it requires) the recusal of judges whose convictions keep them from doing their job. This is a good solution. But it is harder than you think to determine when a judge must recuse himself and when he may stay on the job. Catholic judges will not want to shirk their judicial obligations. They will want to sit whenever they can without acting immorally. So they need to know what the church teaches, and its effect on them. On the other hand litigants and the general public are entitled to impartial justice, and that may be something that a judge who is heedful of ecclesiastical pronouncements cannot dispense. We need to know whether judges are sometimes legally disqualified from hearing cases that their consciences would let them decide.