Learning What Has Been Forgotten

An Essay by Judge Paul B. Matey

Portrait of Sir William Blackstone (unidentified artist, 1755).

Editors’ Note: The New Digest is honored to present the following essay by Judge Paul B. Matey of the United States Court of Appeals for the Third Circuit. Judge Matey delivered a version of the essay at an event on “The Classical Legal Tradition,” held by the University of Pennsylvania Law School’s chapter of the Federalist Society on November 1, 2023. Adrian Vermeule also delivered a response, which will be published here on Thursday. Our thanks not only to Judge Matey, but to the student organizers.

Thanks for the kind introduction, the warm welcome, and the pleasure of joining this discussion. I am delighted to share the stage with a man who, unlike me, really doesn’t need an introduction. And I want to focus my remarks on why that is.

I met Professor Vermeule too many years ago to recall. And I met him as you did. As all students of the law should meet men of consequence. Through their words, their ideas, their contributions concerning how we understand the law.

That is why I first joined the Federalist Society. Like it was for many here I imagine, my study of law lacked balance and avoided challenge. It seemed to rigorously sidestep moral truth. Events like these taught me otherwise. They convinced me that the study of the law is not passive, that debates of significance are conducted with passion, purpose, pointed attacks. Not ambling amateurism. This was the salon of Scalia and Bork, after all. I assumed we came ready for a fight—not another frivolous usually forgettable afternoon.

So when I read Professor Vermeule’s claim that popular libertarian-constitutionalist discourse about administration reminds him of UFO conspiracy theories, I thought: Well. Pour a fresh pot of coffee. For this is certainly not forgettable. May it always be.

Except, lately, it hasn’t. At least among the federal judiciary. Conservatives that once cheered challenge and calls to question now cower in internet corners. Why? It seems to me we have misunderstood the idea of judicial independence. And I take Professor Vermeule to offer us three critical insights that, together, help explain what judges are doing. Even if they say something else.

First, I read him to build from the assumption that most judges, maybe all judges, have little role in developing principles of law, let alone legal philosophy, outside their work on cases and controversies. It surprises me that we must raise this concern. But it is one I share and one I’ll note offers danger when we judges try.

Begin with what should be obvious but is often forgotten. A robe and a commission is just a robe and a commission. I am honored to hold the same title as Judges Bork and Scalia. But I am neither. And bright as many federal judges are, most aren’t either. We may wish to see ourselves as heirs to their tradition, but that is foolish. They were, for a long time, professional scholars. Most of us are just lawyers who, through a combination of timing and connections, wound up serving as judges. So be careful in how you view us. Be ready to remind us when we forget.

Second, and connected to that point, we already have plentiful work. Judging is hard and tiresome. That is confession, not complaint. Complex and ordinary cases require lingering, not passing, study. That leaves little room for a taxing travel and lecture schedule.

If we try to do both?

Most can only take the title, accept the invitations, sign on to the articles and claim the mantle of Bork and Scalia without earning their academic mettle. Maybe that is why for, forever, it became less about the doing of positivism than nodding to the theory of positivism. That the opportunities for positivist judging always seemed just out of reach. That there would be no volumes of textualist and originalist decisions. That we got a nearly entire generation who espoused adherence to a philosophy at night without ever finding occasion to apply it during the workday.

It is what I call the “era of panel positivism.” Or, as the Professor riffs on Carrol, jam tomorrow and jam yesterday, but never jam today. Satisfying, I suppose, in the same way dystopian movies can be—another comparison to contemporary constitutional commentary Professor Vermeule makes.

I fear it is much worse than diversion. Indeed, as Professors Vermeule and Casey wrote, “the occupational hazards for the judge-turned-occasional-theorist are that the necessary concepts and background knowledge, mapped out by intellectual pioneers, are half-remembered and hazily defined.”

Yes. Particularly that point about memory. Fond memories can blind us to our own errors. Sources misread, assumptions poorly grounded, equivalency falsely found. Reasoning grounded in recollections rather than rigorous examination of old answers to new questions. Who wouldn’t prefer Vermeule’s formula, “applying classical principles to current problems and practice, rather than uncritically replicating first-order rules of the classical law or falling into modern theory under a nominally classical rubric.”

All leading to my third observation reading Professor Vermeule. None of what he is proposing is new. Newly remembered, sure. But novel? Hardly. He is emphatic about that point. His recent work on the common good is, he says, “deliberately unoriginal” as theory. Again, a point that seems obvious. Scholarship need not posit something unexpected to remain remarkable. Indeed, as he explains, “originality is not the aim of legal theory, but a byproduct of legal theory when done well.”

Doing legal theory well, I think, contrasts with the problems posed by memory and habit. Take Bork. Thirty years ago, he wrote that “[i]f there was evidence that the framers and ratifiers intended judges to apply natural law, I would accept that judges had to proceed in that fashion.” A bit earlier, February 25, 1775 in fact, Hamilton had occasion to “recommend to your perusal, Grotius, Puffendorf, and Burlemaqui,” just a few authors listed among Madison’s Report on Books for Congress in 1783.

Or take Scalia’s quip in an address at the Dominican House of Studies that, “with apologies to Aquinas, I follow the prescription of Justinian’s Digest, do not depart from the words of the law.” Except, of course, when the jurists prescribed otherwise: as Pomponius noted, “[w]henever there is any doubt over liberty in an interpretation, a reply must be given in favor of liberty” (Digest, 50.17.20). Or as Paulus wrote, “[w]hen inquiry is made as to the interpretation of a law, it must in the first place be ascertained what rule the State formerly made use of in cases of the same kind; for custom is the best interpreter of the laws” (Digest, 1.3.37; see also Justinian, Institutes, 4.17pr).

What to make of this forgetfulness? For Bork and Scalia it was, I conclude, calculated. Both urged a narrow focus on positive law as a substantively complete set of rules hoping to foster deference to political majorities. I admire and understand their thinking. I am less persuaded that others are so deliberate. Why assume the theoretical hats worn well by a few look good on all?

And that is where Professor Vermeule’s threads, for me, connect into the question: Do we have a crisis of deference, dependence, or just diligence?

For some time, we have pursued the goal of an independent judiciary. It is, we are told from Hamilton on, the cornerstone of republicanism and constitutional design. But as Professor Vermeule points out in a related context, “independence is a relational term; it is independence from something else.” For a bit, perhaps, judges wanted to be independent of Congress. They would glance at legal text and then depart for intents unknown and unknowable.

Rightly, we pulled back. Not by discovering some new theory of interpretation that begins with the text. But by recalling what Blackstone outlined two hundred plus years before that “[t]he fairest and most rational method to interpret” this will is by exploring the lawmaker’s “intentions at the time when the law was made, by signs the most natural and probable. And these signs are either the words, the context, the subject matter, the effects and consequence, or the spirit and reason of the law.”

Professor Vermeule asks, gently, what else have we forgotten? Better, what have we decided to half-remember? Or, perhaps, what have judges replaced remembrance with? The answer I see in my work is independence from independently selected external constraints. We see, myopically, because we judge solipsistically. And we rather like it. It is easier, tidier, more satisfying to accept doctrine as dogma.

Judges demand freedom from deference so we can consider the law de novo. And then having announced our liberty from everything, we pick what de novo judging means. For some, it is text. Or some text. Or only plain text (whatever that possibly means). Sometimes it means considering what the public thinks in the form of expertise or argument or interpretation or regulation. Sometimes some, but not all, of these things. Sometimes all, but not on the same day. Who knows.

Whatever the choice, it is not “de novo” because it is not “from the beginning.” That starts with, as Hamilton wrote, what “Good and wise men, in all ages, have . . . supposed, that the Deity, from the relations we stand in to Himself and to each other, has constituted an eternal and immutable law, which is indispensably obligatory upon all mankind, prior to any human institution whatever.”

And so the signs seen by Blackstone are cut and we elevate or ignore the ones outside the orthodoxy. That cannot be correct. It necessarily reads past thousands of years before the founding, and hundreds after. And as Vermeule notes it brushes aside the foundational principles recognized in the Constitution, with its call to preserve liberty “not to maximize individual choice,” but as a “teleological” value ordered to the good.

What to do?

First, let judges return to the classroom by declining the unearned place of public persona and embracing the role of humble and anonymous decisionmaker. Judges are consumers of legal theory, well-trained technicians perhaps, but not much more. And as students we should run to, not from, challenge and debate. The judge as student not scholar is not afraid of fresh ideas. He is eager for the help, excited by the chance to move his decisions, if even in a single matter, closer to the classical principles of justice.

Second, we must ask whether our zeal for independence is not merely misguided, but wrong. Insulation from classical means of control (pay and position) does not mean isolation from the classical means of reason studied, incorporated, and insisted on by the architects of our Republic. The judiciary is not a “freedom-from” branch of government, but a “freedom-to” conception. In other words, we are protected so we may do our job—not so we can delegate or defer to some faux-dogma we don’t really understand.

That’s the problem with placing theories first. Judges run the risk of turning methodology into a sort of secular dogma, skipping the thing that transforms teachings into tenets: the source of the authority.

Worse, I fear we lean into method to avoid learning. If that sounds lazy, it is. But textualist positivism was born of such things. When H.L.A. Hart was struggling as a young philosopher, he found in Wittgenstein answers that helped him “let go of a crippling sense of complexity” about knowledge.

I understand reaching that place. The sadness and confusion that comes from hitting the wall of your own learning. But is the answer really to reach for simplicity? That is not what the judges of the Founding did. We study the greats like John Marshall. But we falsely believe, as Robert Clinton once wrote, that judges “were monistic materialists and thus believed that the social good was quantitative in character and that economic motives determined the law of the Constitution. The judges of Marshall’s time believed none of these things.”

Nor do I. So I pair my robe and commission with a pen and pad and a hope that through study I can learn what has been forgotten. That judging requires fidelity to law as it has always been understood, drawing on the thick layer of reasoning and rationale common not only to our founding generation, but the generations that inspired the founders to act.

Justice Scalia once remarked: “I am something of a contrarian, I suppose. I feel less comfortable when everybody agrees with me. I say, ‘I better reexamine my position!’” On that point alone, I guess, I can say I stand shoulder-to-shoulder with greatness.

So let’s return to our study. Faithful, not fearful, in reexamining answers that once seemed robust, relevant, even required. Hiding from that challenge means hiding from our oath. The good, commonly known to republics before ours, demands at least that much.