Justice Barrett’s Dogma

A Response to a Recent Interview

Justice Amy Coney Barrett recently gave an interview in which she commented explicitly and at some length on common good constitutionalism.¹ Her view, in brief, is that she “doesn’t like this common good constitutionalism movement.”² It’s not every day that the view about constitutional interpretation to which one subscribes is discussed by a Supreme Court Justice, but it’s also not the first time that Barrett has commented on the topic. In a 2022 interview in memory of Judge Laurence Silberman, who had recently passed away, Barrett went out of her way to bring up common good constitutionalism. As recounted by the interviewer:

‘[Judge Silberman] would go where the law led - even if it led him to places he didn’t always like,’ Justice Barrett said. ‘And that’s what a judge has to do. I am not a fan of common-good constitutionalism,’ Justice Barrett added, presumably because it gives judges too much leeway to smuggle their policy preferences into the law. ‘Judge Silberman was just horrified by it.’

I’m unsure whether the interviewer in 2022 correctly divined Barrett’s thinking on the occasion. There is definite irony in the spectacle of an interviewer, concerned about the smuggling-in of personal views, reading that very concern into the opaque statement of a Justice who was herself acting as a kind of spirit-medium for the views of an inaccessible third party. What does seem clear overall, however, is that the topic of common good constitutionalism has been troubling Barrett’s mind for some time. Hence a response seems warranted.

I should say at the outset that I don’t think common good constitutionalism, the view Barrett criticizes, is my view in any important sense. I claim no originality, and indeed think that originality is in principle a suspicious feature of any legal theory. Methodologically speaking, common good constitutionalism is just a shorthand for the classical conception of constitutionalism and constitutional interpretation, to which the great bulk of American jurists subscribed during the founding era and throughout most of our history, as detailed not only in my book but also here, here, here, here, here, here, here, here, here, and here, and indeed as evidenced by almost every volume of the law reports before roughly the early-to-mid-20th century.³ Our problem, as Judge Paul Matey writes, is in a sense merely to remember what has been forgotten.

As for Justice Barrett’s critique, I will attempt to speak both candidly and with all due courtesy: it is not clear, to me anyway, that Justice Barrett has really followed and absorbed the debates on which she has been commenting. One can imagine a Justice who stays away from commenting on legal theory altogether, on the view that just as the best players of a sport do not necessarily make the best coaches, so too proficiency on the bench, a form of applied practical understanding or knowing-how, does not necessarily confer any special ability, off the bench, to explain in theoretical terms what judges do or should do, a form of knowing-that. Many Justices prudently take this approach, limiting themselves to on-the-bench writing. On the other hand, some Justices have participated actively and successfully, off-bench, in the enterprise of legal theory. Justice Scalia, while on the Court, especially in his annus mirabilis of 1989-90, produced a cluster of works that are still heavily cited and highly influential. An unhappy third possibility, however, is that a Justice or judge may be active but unsuccessful — may participate in the enterprise of legal theory, off the bench, by offering what one can only call argument-by-slogan (as Conor Casey and I once put it).

For, I am afraid to say, slogans and fragments of remembered scholarship are all that Barrett does offer. Apart from a suggestion that originalism has always been our law — as to which she mentions a book published in 1999, decades before the recent wave of scholarship, linked above, that recovers the classical legal tradition — she gives us but one central thought. Her main substantive charge, repeated at the beginning and the end of the passage, is that common-good constitutionalism is “results-oriented.” That single phrase seems to have caught in her mind, taken root, and grown to occupy the entirety of the space.

To this I have several reactions. The first is that there is a serious ambiguity in Justice Barrett’s critique.⁴ There is a sense of “result-oriented” that Justice Barrett would be quite right to criticize; in this sense, the judge must avoid result-orientation at all costs. This sense is captured in the federal judicial oath mandated by 28 U.SC. 453, which requires the judge to swear to “administer justice without respect to persons, and do equal right to the poor and to the rich.” The judge must show no partiality whatsoever as between the parties to the case.

But I’m not at all sure that’s what Justice Barrett means by “result-oriented.” If, as I suspect, she is drawing upon a different sense of “result-oriented” widespread in originalist writing, she means something quite different: judges interpreting the law must never take into account the consequences for the common good or public interest of the various possible interpretations. Fiat sensus primigenius, ruat caelum - let the original meaning be done, though the heavens fall.

Common good constitutionalism does indeed hold that judges interpreting the law should sometimes take into account the consequences of their interpretations for the public interest; in that sense, although only in that sense, Barrett’s charge of “result-orientation” is perfectly true. The difference between Barrett and the classical lawyer, however, is that the classical lawyer does not think it is bad for judges to be “result-oriented” in the second sense. Indeed I believe that “result-orientation” in the second sense is so firmly grounded in our legal theory and practice, from the very beginning of our republic, that any good-faith originalist ought to recognize a kind of bounded legal consequentialism as one component of her approach to adjudication.

A leading originalist, Sai Prakash of the University of Virginia, has recently written a brace of papers demonstrating in rich detail the central role in legal interpretation of both arguments from “the spirit of the law” and of “consequences”, both during the founding era and well beyond. But Prakash here just reminds us of what even originalists long knew. Before a certain point, before originalism became ossified as a dogma, the role of consequences in legal interpretation was common knowledge. As the ur-originalist Justice Scalia put it in the classically-inflected first stage of his career, when his originalism and textualism was still very much in continuity with the classical tradition of our law (a phase that I have described as “the original Scalia”):

It seems to me that the ‘traditional tools of statutory construction’ include not merely text and legislative history but also, quite specifically, the consideration of policy consequences. Indeed, that tool is so traditional that it has been enshrined in Latin: ‘Ratio est legis anima; mutata legis ratione mutatur et lex.’ (‘The reason for the law is its soul; when the reason for the law changes, the law changes as well.’)

Scalia’s point here was not at all that the consideration of consequences in legal interpretation is somehow extra-legal, an alternative to doing law.⁵ On the contrary, his point was that such consideration is itself a time-honored mode of doing law, within law and within the practice of lawyers and judges.

In this, he was simply correct. Indeed he was so correct that one doesn’t quite know where to begin to show that he was correct; the evidence is so ubiquitous that it overwhelms. The tradition has always centrally featured a vast array of legal presumptions or regulae juris that assume that the positive law is rational and public-spirited — presumptions routinely applied to understand what the positive law requires, and to interpret the law so as to yield sensible consequences. The old idea that a legal interpretation should be rejected if it produces “absurd results,” an idea that the Court invoked in a constitutional setting just last Term (in an opinion that Justice Barrett herself joined), is only the best-known of these result-oriented interpretive principles. The particular maxim to which Scalia refers can be traced to a common law-decision of 1587,⁶ and a closely related maxim (cessante ratione legis, cessat [et] ipsa lex — “when the reason for the law ceases, the law itself ceases”) is an even more venerable principle of law. Similar principles are standard fare in collections of legal maxims and presumptions from the 18th to the 20th centuries — collections that were a staple of legal education, and one of the main tools used throughout the tradition to shape and constrain adjudication and interpretation. Broom’s standard collection of presumptions and maxims, taken from both American and English caselaw, begins with a section on fundamental principles of “universal application,” of which the very first is Salus Populi Suprema Lex — or as Broom explains: “that regard be had to the public welfare, is the supreme law”.⁷

Salus Populi Suprema Lex sounds ominous, but really it just states a master principle that Justice Alito recently defended: “A conscientious judge has no choice but to do what the law requires. But we do not have an asinine or idiotic constitution, so an originalist judge should not cavalierly or happily embrace results that defy common sense.” The Constitution is not a suicide pact — not because we stick common sense onto the law as a sort of external band-aid, but because the internal logic of law itself requires that we interpret law with the fundamental presumption that the lawmaker is rational and well-intentioned, and intends to benefit rather than harm the political community that the law governs. As to the federal judicial oath, the impartial decisionmaking which the law and our tradition enforces upon judges is the requirement of “administer[ing] justice,” meaning legal justice. And the administration of legal justice, within the judicial role, has itself required since the beginning of our legal traditions that the judge take into account that the law is presumed to be ordered to the general welfare, common good, or public interest, and that the judge should interpret the law accordingly.

Justice Scalia observed on another occasion that we assume that all governmental decisions are taken “in order to further a public purpose, rather than a purely private interest.” The interpreter does not keep a perfectly open mind about the possibilities that the positive lawmaker intended a joke, or intended only to benefit the lawmaker’s relatives, or intended to inflict cruel and pointless harms, or intended means that would contradict the law’s apparent ends. Even without realizing it, every right-thinking interpreter naturally assumes the contrary. Duly promulgated law has an immanent end, a telos if one wants to speak grandly, in virtue of which it is assumed by the jurist that the law in its real nature represents a reasoned ordinance for the common good. The obligation to keep that end in mind, while simultaneously respecting the textual and legal materials and the particular decisions of authorized lawmakers, is just what occasionally makes law and judging difficult. If this is what “result-orientation” should be taken to mean, then result-orientation has been part and parcel of our law and legal practice since forever. It is somewhat disheartening to see the rich array of background principles that traditionally structured and informed our law, built up by the careful work of jurists over centuries and even millennia, dismissed by the slogans of the day.

So far I have replied to Barrett that there is a sense of “result-oriented,” judicial partiality in a given case, that is indeed bad, but that does not abrogate the judge’s duty to make sense of the law as a rational ordinance for the common good; while there is another, quite different sense, the interpretation of law to promote beneficial consequences for the polity, that is as venerable as the law itself, and that the classical legal tradition embraces and deems good. The synthesis of these two points yields my final reaction: Justice Barrett’s slogan is the sort of idée fixe that becomes treacherous and misleading precisely because it once contained a good and useful truth, before it ossified into a dogma.

Here, as so often, an evil is the exaggeration of a good, and a false view is the distortion of a truth. It is right and good that judges should defer, within broad bounds of reasonableness, to the decisions of authorized lawmakers (as Common Good Constitutionalism advocates at length). It is right and good that judges should pay close attention to the actual text of the law with all its limitations and even compromises, read in light of the traditional presumptions of our law, and in that sense presumptively be “textualists” (as Common Good Constitutionalism also advocates at length). The originalist rhetoric targeted against “result-orientation” is a useful reminder of those homely truths.

But that rhetoric becomes hypertrophied, becomes a harmful over-correction to a real problem, when it causes the judge to lose sight of what the American instantiation of the classical legal tradition long understood to be the substance and nature of doing law and legal interpretation at all. Especially for the modern originalist, who claims not merely to limit judicial discretion, but to do so in a very particular way — by tracking the original understanding of law and legal texts — it is an insuperable paradox that the jurists of the founding era, almost to a man, would have rejected the originalist rhetoric about “result-orientation” in Barrett’s sense, because they simply did not think about law in that way.⁸ It is not that modern originalism is wholly wrong, exactly (although its claims about the history of our law are indeed wrong); it is that its dogmatic pretensions are a damaging over-correction.

When Justice Barrett was undergoing the ordeal of confirmation, Senator Dianne Feinstein worried that “the dogma lives loudly” within the nominee. In one of the larger ironies of our legal history, the dogma about which Senator Feinstein was concerned has been too muted, if it is even audible at all, in Justice Barrett’s decisionmaking. The dogma that originalism has become, by contrast, lives too loudly there.

1. Here is the full text of the relevant section from the interview (in italics):

NR: We’re now in a position where there are critics of originalism from the right — people who say: It’s too legally positivist. It doesn’t consider enough of the common good to achieve everything that the right wants to do. How do you think about or respond to those kind of critiques?

JUSTICE BARRETT: I don’t like this common good constitutionalism movement.

It feels to me like it’s just results-oriented, and I think that it has all of the defects that originalists critiqued when originalism first became a self-conscious theory in the 1980s. I resist the idea that originalism wasn’t around until Scalia, that originalism wasn’t around until the ’80s, because if you go back and look even at [John] Marshall opinions, and go back to the Founding they were looking at, you know, what did the Framers intend? They might not have always used the language of meaning rather than intent, but originalism, Keith Whittington talks about this. I mean, originalism was always a part of the Court’s jurisprudence. But just like that little caveat, I just think that common good constitutionalism is just kind of results-oriented jurisprudence from the right.

NR: Yeah, I like to cite Washington’s Farewell Address and its warning against departing from the Constitution.

JUSTICE BARRETT: Yeah.

2. When Justice Barrett refers to “the common good constitutionalism movement,” I find the description slightly off-center, as though she is referring to a “movement for social change” or some such. I would say that the resurgence of interest in classical legal theory is merely the growth of a recognition that at some point, our law experienced a sharp break in continuity, in which our very own American instantiation of the classical legal tradition was largely erased from the collective memory. The so-called “movement” is really just a decentralized and independent recognition of that breach by jurists, of widely varying commitments, who have worked with enough legal materials from before the breach occurred as to make its existence undeniable to them. It is much more like an awakening from legal amnesia than it is like a crusade. Ironically enough, originalism at least in its recent dogmatized form really is a “movement,” in the sense that it is an institutionalized and heavily-funded approach to law that provides enough entry-level materials, seminars, and professional opportunities to accompany the law student from the first year of law school and onwards indefinitely.

3. My favorite example, as my seminar students know, is a decision from 1895 in which the Court grounded the presumption of innocence for criminal trials in legal sources such as Deuteronomy, the Corpus Juris Civilis, and canon law, and of course common-law juristic treatises and authorities that themselves cited the older civilian sources. These authorities, the Court said, provided evidence that the presumption of innocence is “the undoubted law, axiomatic and elementary.”

4. On X, “Clovis Trahan” made a similar point.

5. Compare the interviewer’s entirely question-begging idea, if such it may be called, that one must not “depart from the Constitution,” towards the end of the recent interview text quoted in Note 1 above. Of course the whole argument for common good constitutionalism is that it is the classical view about how law is to be interpreted, not a proposal for “departing” from what law requires.

6. See Rogers v. Tennessee, 532 U.S. 451, 474 (2001) (Scalia, J., dissenting) (tracing the maxim to Milborn’s Case, 7 Co. Rep. 6b, 7a (1587)).

7. For the cessante ratione maxim, see Herbert Broom, A Selection of Legal Maxims, Classified and Illustrated (8th American edition 1882), at 159-62.

8. In the setting of statutory interpretation, Justice Barrett has also struggled with the relationship between her positivist inclinations and the awkward fact that the history and tradition of American legal interpretation has by and large not been positivist. See Adrian Vermeule, “Text and ‘Context’”, Notice and Comment (July 13, 2023).