Statutory Interpretation

Judge Amy Coney Barrett's Assorted Canards of Contemporary Legal Analysis: Redux

The Case Western Reserve Law Review has published Judge Barrett's 2019 Sumner Canary Memorial Lecture

|The Volokh Conspiracy |

Last fall, the Honorable Amy Coney Barrett delivered the 2019 Sumner Canary Memorial Lecture at the Case Western Reserve University School of Law: "Assorted Canards of Contemporary Legal Analysis: Redux." The lecture has now been published in the Case Western Reserve Law Review. 

Here is how Judge Barrett's lecture begins:

It would be an honor for me to speak to you at any time, but I'm particularly honored to be doing so now, on the thirtieth anniversary of the Sumner Canary Lecture delivered by Justice Antonin Scalia, my former boss and mentor. His lecture, titled Assorted Canards of Contemporary Legal Analysis, described his "most hated legal canards"—baseless but frequently repeated statements that lawyers are "condemned to read, again and again, in the reported cases." He took aim, for example, at the hoary canon that "remedial statutes are to be broadly construed." He asked, "How are we to know what is a remedial statute?" "Are not all statutes intended to remedy some social problem?" "And why should we construe any statute broadly?" Statutes should be construed neither broadly nor narrowly, but at the level of generality at which they are written. And he bemoaned the well-worn phrase, "A foolish consistency is the hobgoblin of little minds." Why is consistency in the law a bad thing?

Tonight, in the spirit of Justice Scalia's Canary Lecture, I'm going to share my own list of canards.

A PDF of the lecture may be downloaded here.

Video of Judge Barrett's lecture is available here.

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  1. Vote for Trump so we can get her on SCOTUS.

    1. I don’t think Trump does lady judges.

      1. Who do you think appointed Judge Barrett?

        1. The DoJ. Unless she was willing to give him money, sleep with him, or sing his praises at the top of her voice, I don’t think Trump ever met her.

          1. You think Trump ever personally met any of his judicial appointments?

            Incidentally, the last report I could find is a bit dated but at the time of that report, Trump had appointed 48 female judges, 25% of his total.

            1. Twenty-five percent? So Trump has a better record than the Volokh Conspiracy on overcoming exclusion of women?

              Ouch. Very ouch.

      2. She will be his pick if Ginsburg assumes room temperature. Care to bet?

        1. Fortunately we won’t have to find out.

        2. That would not bother me (other than the Ginsburg departure part).

          It would all but ensure Court enlargement, House enlargement (with it, Electoral College enlargement and diminution of the structural amplification of rural votes), elimination (or near-elimination) of the filibuster, admission of new states, and a few other measures that would all but close the culture war (and, with it, Republican relevance in national politics).

  2. Thanks for posting!

    I always appreciate a good defense of textualism. From a personal perspective, I simply cannot do my job of counseling businesses with regard to legal matters if I can’t have some quantum of certainty that courts will apply the actual words of a statute.

    This seems a basic tenant of the rule of law, something judges, of all people, should understand, yet the allure of “just ends” often ensnares otherwise bright (usually liberal) jurists.

    1. I was trying to interpret your comment textually, but then I got to “tenant of the rule of law”, and I got stuck. I guess textualism isn’t as useful as we thought…

      1. He meant tenet. They often get confused because they originate from the same Latin word (verb, tenere). Since tenant is used more, it often is substituted accidentally for tenet. It’s on the Wikipedia list of commonly misused English words.

    2. “I simply cannot do my job of counseling businesses with regard to legal matters if I can’t have some quantum of certainty that courts will apply the actual words of a statute.” Very true. For many years, I had the job of counseling law enforcement investigators regarding the legality of their intended investigative steps. Not only did I have to guess what the appellate courts might do, I had to guess how mostly dumb trial judges would misconstrue even clear appellate mandates.

  3. Not understanding any whining about “A foolish consistency is the hobgoblin of little minds.” Makes perfect sense and it’s a very helpful quote.

    Now, the *mis*quote (where “foolish” is removed) is dumb indeed. But complaining about a quote that complains about a foolish anything seems odd. Why is consistency in the law a bad thing, you ask? Good consistency is a wonderful thing, for a bunch of obvious reasons. And even a foolish consistency has many possible benefits (faith in the law being applied consistently, etc).

    But poor decisions should be able to be revisited. No one is arguing the alternative…that once the Sup Ct rules on an issue, it should never rule a different way. Or is that your argument…that consistency is such a valuable thing, things like abortion rights rulings, gun control rights rulings, anti-gay rulings…well, they’re now carved in stone?

    1. Not understanding any whining about “A foolish consistency is the hobgoblin of little minds.” Makes perfect sense and it’s a very helpful quote.

      Now, the *mis*quote (where “foolish” is removed) is dumb indeed.

      Here’s what Scalia wrote on the subject:

      As for substance: It should be noted that Emerson is condemning not just that portion of consistency he considers “foolish.” His point is that all desire for consistency is foolish. “With consistency a great soul has nothing to do.” At the risk of being considered a little statesman, a philosopher, a divine or even an aged lady (at least many of the last category, by the way, seem quite wise to me), this strikes me as unmitigated nonsense. One should assuredly not shrink from changing his views when persuaded that they are wrong. But the person who finds himself repeatedly in that situation – who quite readily speaks today what he thinks today, and tomorrow what he thinks tomorrow, with no concern for, with “simply nothing to do” with, the inconsistency between the two – is rightly regarded, it seems to me, not as a “great soul,” but as one who habitually speaks without reflection, that is to say, a right fool.”

      Now all of this would not have been worth commenting upon
      if Emerson had not been inflicted upon the law.. I think it gener-
      ally sound policy to leave poets alone if they leave you alone. But
      the fact is that Emerson’s aphorism – which, as I have observed,
      is even inaccurate in its more general application – has been reg-
      ularly and repeatedly applied to the law, where its message is de-
      structive beyond measure. Consistency is the very foundation of
      the rule of law.

  4. Emerson’s quote is, indeed, unmitigated non-sense.

    It has always struck me as an adolescent, impetuous, jejune, logic challenged outburst uttered by one who has been intellectually outclassed.

  5. If the standard for consistency is permitted to rest on arguments by analogy, then there is indeed great scope for foolishness. Attempts to argue alike about inevitably disparate analogies offer unbounded invitations to enlarge the scope for prejudice and discretion. In such instances, the arguments turn from the substance of the case at hand, to focus instead on the prejudices and partialities built into the choice and structure of the analogy. Sorting that out then delivers the illusion that the case itself has been dealt with, which is indeed foolish. To avoid that sort of foolishness, every such case ought to be held to the standard of a closing argument from which every mention of the analogy has been banished.

    If the standard for consistency excludes arguments by analogy, there is little point to the controversy. Cases which are so closely matched that they can be argued alike, without analogies, ought not to engender much legal variety among their outcomes.

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