The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Chief Judge William Pryor delivers the 14th Joseph Story Distinguished Lecture
Judge Pryor explains that Common Good Originalism should be called Living Common Goodism
On Wednesday, I was honored to attend the 14th Annual Joseph Story Distinguished Lecture. Chief Judge William Pryor of the Eleventh Circuit Court of Appeals gave the address. He addressed an important fault line in current legal conservative debates. Pryor explains that common good originalism should really be called living common goodism.
Watch the entire address. You will enjoy it, and learn a lot.
To get the Volokh Conspiracy Daily e-mail, please sign up here.
Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Comments may only be edited within 5 minutes of posting. Report abuses.
Please
to post comments
The judge’s monologue should come with a NSFW label. So many n-words and m. f. words.
https://www.youtube.com/watch?v=ZWulvchFpYs
Oh, you said *William* Pryor. Never mind. I hope you didn’t click my link.
Did Judge Pryor state that he hates all Black people — or does he leave that part of the job to his clerk?
Why don’t you watch it and tell us instead of relying on your imaginings?
You know what I learned from Chief Judge William Pryor this past week? That he hired a clerk named Crystal Clanton who was known for being forced out of TPUSA for among other things saying: “ I HATE BLACK PEOPLE. Like fuck them all . . . I hate blacks. End of story.” Now when asked about this a short four years ago, Clanton didn’t deny she said that, presumably because the screen shots the New Yorker had were authentic. She did say this:“ I have no recollection of these messages and they do not reflect what I believe or who I am and the same was true when I was a teenager.” So at best a somewhat weasel acknowledgement without trying to take responsibility. But perhaps most notably: not an emphatic and remorseful apology.
Which brings us back to Judge Pryor. Why would the chief judge of a judicial circuit and SCOTUS “feeder” judge hire this clerk? Is she some kind of legal genius? Well she’s at Scalia Law a respectable 41 in USNWR rankings but certainly not the cream of the crop. But you might say she was a standout student. Though she wasn’t EIC or even on law review or even any other journal. Now you might say those are kind of BS credentials for assessing legal talent, and I’d generally agree. But we also know those are the credentials federal judges, particularly circuit courts and SCOTUS, look for in their clerkship candidates. So it is extremely notable that she doesn’t have those. Perhaps being friends with Ginni Thomas helps?
Pryor has refused to comment on this despite being asked. Which makes sense since he’s a life time tenured federal judge who doesn’t need to be accountable to the press for his decisions, particularly his hiring ones. I suspect, however, that he can’t escape this forever. I assume the motions for him to recuse or ethics complaints to the Judicial Conference will prompt some sort of response. His impartiality on cases involving Black litigants is certainly called into question now. (Muslims/Arabs too, lest we forget she ALSO was spreading bigoted memes about them too)
It also might be embarrassing for him if she has a problem getting through character and fitness if she intends to take the bar.
I’ll close with a note about Josh. Stellar thinker that he is, he thinks now is the time to attend panels with and ask people to learn from Judge Pryor, as if Pryor isn’t in the news for hiring an unrepentant racist as a law clerk. If he wasn’t so interested in promoting his agenda and cultivating his connections to seem important he’d make a statement condemning this. The march of his absolute moral bankruptcy continues.
We should expect this White, male blog to devote as much attention to this issue as it did to Judge Kozinski’s problem (except to the extent the proprietor enables troublesome commenters to address it).
I’m very happy you typed all this out so I didn’t feel the need to.
Then how did I learn about it?
https://www.washingtonpost.com/opinions/2021/10/08/crystal-clanton-racist-comments-william-pryor-clerkship/
https://www.thedailybeast.com/she-said-i-hate-black-peoplenow-shes-a-rising-gop-star
Among other links.
I don’t like the idea of nonsense we did as stupid teenagers following us throughout our lives.
This is pretty egregious, but I also don’t think you get to assume she still feels that way.
Turning Point. Federalist Society. Pryor. ASSLaw. Limp explanations. Even Turning Point dumped her.
That pattern seems persuasive with respect to failure to abandon the overt, strident racism of four years ago. (The lack of judgment is another, also troubling, issue — most right-wing bigots have learned by now to guard their sentiments in public.)
Let’s hope she improves. A 26-year-old is not a lost cause, even someone with her trajectory.
I think we do because she never apologized or showed remorse as an adult when asked about it four years ago. Or now to our knowledge.
But that’s sort of besides the point, which is actually about Pryor. He clearly went out of his way to pick this person over many other very qualified people without a documented track record of racism. Now we know that something as egregious as this isn’t a deal-breaker for him. He’s apparently fine with being the Chief Judge of a federal circuit and choosing someone publicly notable for racist invective to be his clerk. It brings into question his own feelings on the topic. At the very least he isn’t concerned that this makes it look like he doesn’t care about how black and brown litigants might feel knowing that 1) he’s okay with this 2) she will be working on their cases.
In our outrage, let’s not forget that this lecture is named after Joseph Story – author of the Prigg v. Pennsylvania opinion. Just as a reminder, this opinion was pro-slavery and allowed the capture of fugitive slaves without due process.
With John Marshall cancelled, can Story be far behind?
https://reason.com/volokh/2021/05/21/john-marshall-law-school-cancels-john-marshall/
The Constitution was of course pro-slavery at the time, as later recognized in Dred Scott v. Sandford. So your objection to Story is that he didn’t prematurely invent living common goodism?
I’m saying if we’re going to race-bait, let’s do it properly.
And there’s nothing natural and inevitable about saying fugitive slaves can be seized *without due process.* By all means check the relevant portions of the Constitution and see where it says such a thing.
Was this after the 14th amendment? No.
So, where was he supposed to find this constitutional guarantee of due process on the part of states?
He was able to find the supremacy clause, though, and reasoned that the process due had to be the process provided for in the fugitive slave act, not whatever a state might prefer, on account of that clause.
Raging at the process behind the fugitive slave act seems a deckchairs/Titanic situation.
Sigh…look, when it comes to race-baiting I am a master baiter.
Let’s review…
Pennsylvania said it was a crime to seize and take a black person out of the state without due process. That is to say, the person had to be adjudicated a fugitive slave before being shipped South.
Pennsylvania wasn’t challenging the Fugitive Slave Act, but was requiring that the Act’s procedures *be followed.*
The Supreme Court held this unconstitutional because Story and his colleagues believed a master had the right to go into a free state and seize and carry away his fugitive slave to the South without due process, so long as he didn’t breach the peace.
So, in short, Story thought the procedures of the Fugitive Slave Act were not adequate, that seizures without due process were a *supplemental* way for masters to enforce their “rights.”
But I don’t even have to go this far to get Story cancelled. His willingness to uphold slavery under any circumstances should be enough to have everything named after him to be renamed.
But isn’t the point that they weren’t black persons under the law?
I don’t think you can counterfactual your way towards an America without allowing for that fundamental failure of living up to the promise of the Declaration.
The Act itself, and the times, were monstrous. This was also bad, but like the crap cherry on top; I can’t get too angry at it.
“The Act itself, and the times, were monstrous.”
Fair enough.
The Pennsylvania legislature tried to take the edge off some of the badness, and Story and his colleagues wouldn’t let them.
But it’s OK, because bad is bad, there are no shades of gray.
I think one reason the Civil War was a thing was because attempts to progress away from slavery step by step were blocked, and the Slave Power insisted on rule or ruin, all or nothing.
(Guess which side Story was on?)
Dred Scott was incorrect the day it was decided, even by originalist standards. Check out Lysander Spooner’s “The Unconstitutionality of Slavery” and Randy Barnett’s writings on the same.
Given Judge Pryor’s comments regarding enumerated and unenumerated rights, I would lover to hear his interpretation of the 9th Amendment.
Then watch the video. He addresses the 9th Amendment.
I would characterise his speech as a politian’s pablum, followed by evasion, most definately including the 9thA bit, but it is what it is.
I did, and not really. He gets asked about 9A, but he deflects and 80%+ of his answer is about 10A, not 9A.
Worst, most open ended paragraph of the Constitution. The Founders left the door unlocked and Congress opened it all the way and now there truly are no limits on the US government save the few prohibitions in limited areas in the Bill of Rights. O’Connor’s dissent in Dole truly spelled out the problem with “the common good” and the spending clause. The courts offer no remedy or limits to the usurpation of power by Congress. The voters are certainly not worried so long aa they get their “bread” and the states no longer have the power to stop the feds as they too have become dependent upon the feds.
It’s not a usurpation if it’s in the Constitution as you admit.
Check out the voting rates of people on entitlements some time. The answer may surprise you!
With this one weird trick!
😛
The idea that buying votes is what entitlements do ignores who is voting. The effect is pretty marginal compared to if you bribed, say, the middle class.
It’s almost as though Dems support entitlements because our worldview tells us it’s good policy!
Mostly agree with him. But: he says it would be illegitimate for a judge to recognize as constitutionally protected natural rights which are not found in the Constitution. What is the 9th Amendment but an express license for judges to do just that?
From the tenor of some of the comments here, I sense that many Democrats have never forgiven the Republicans for winning the Civil War and outlawing slavery.