The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
In Brackeen, Justice Barrett faulted counsel for the adoptive parents. She wrote that they failed to "offer a theory for rationalizing" the Indian Commerce Clause. Therefore, she was not willing to accept their position. Admittedly, Indian law is very complicated, and the attorneys did not have answers to all of their questions. But in my view, that was not the usual standard in constitutional litigation. Rather, as I saw it, Justice Barrett was imposing a "staggeringly heavy" burden on the petitioners. Indeed, I'm not sure if the arguments in United States v. Lopez, as they were presented in 1996, would have been sufficient for Justice Barrett.
Will Baude offers a way of explaining Barrett's approach in Brackeen, as well as in Fulton v. City of Philadelphia. He calls it the "look before you leap" principle:
In both cases, Justice Barrett wants some account of where a theory of the law is supposed to take her before she decides whether to embrace it. In Brackeen, that's a theory of how to reconcile—or to not reconcile, either one!—the challengers' theory of federal Indian power with the Court's cases. In Fulton it's a theory of what would replace Employment Division v. Smith if Smith is to be overruled. It demonstrates, I think, a quite sensible refusal to just muddle through and assume the law will sort itself out later.
In 2021, I was somewhat flummoxed by Justice Barrett's concurrence in Fulton. She raised a host of questions that should have been apparent to anyone who has considered Smith over the past three decades. None of the questions were particularly insightful or novel. Sometimes, I attend a presentation of a terrible paper. I think the author has a bad idea that I cannot get behind, so I come up with a few random, polite questions to at least show interest in the topic, but I don't really care about the answers. That was how I saw Justice Barrett's Fulton concurrence–she was going through the motions because she did not want to overrule Smith. Was Justice Barrett actually interested in the answers to her questions? Doubtful. In the wake of Fulton, the Court has denied several petitions that would have given parties a chance to answer Justice Barrett's questions.
Was Justice Barrett looking before she leapt in Fulton and Brackeen. I think that theory only works if she would ever actually jump. With regard to Brackeen, I doubt any litigant can ever present her a perfect theory wrapped with an originalist bow about the Indian Commerce Clause. And with regard to Fulton, Smith is safe and sound, at least at it was interpreted in Roman Catholic Diocese and Fulton. And perhaps Justice Barrett may recognize Equal Protection problems with ICWA, but I am skeptical there are even four votes to grant cert on that followup case. Striking down ICWA on as applied grounds would create nearly as much chaos as the facial challenge.
Rather than "look before you leap," I think Justice Barrett simply favors judicial restraint. She resembles Justice Scalia, circa late 1980s or early 1990s. Her not-entirely-positive review of Barnett's Our Republican Constitution is the cleanest distillation of her judicial philosophy. Here is an excerpt from the introduction:
In this essay, I begin by developing the connection between Barnett's theory of the Constitution and his approach to judicial review. I then express doubt about the historical support for Barnett's approach, contend that the task he would give courts fails to account for the realities of the legislative process, and argue that he overestimates the institutional capacity of courts. I conclude by praising Barnett's attention to the often-misunderstood concept of judicial restraint. That is a point on which many can agree with Barnett, regardless whether they accept his republican take on our Constitution.
Justice Gorsuch would not sign onto this review. For all his faults, he is not a judicial restrainter. What about Justice Kavanaugh? I have no clue what he actually thinks. (More on his output this term in another post.)
That background brings me to Justice Barrett's concurrence in Biden v. Nebraska. She offered what I think is the Court's strongest defense of the major questions doctrine. But why did she do work that the parties did not? With all respect, the parties in Nebraska, and in West Virginia, did not present a coherent "theory for rationalizing" the MQD. (There are countless law professors who wrote lots of tweets to prove this point!) Justice Barrett did so on her own. I see no problem with this approach, but it does undermine her critiques of the lawyers in Brackeen for not connecting all the dots. If Justice Barrett wants to figure something out on her own, she can. (And I wish she would do it more, because she is one of the Court's best big thinkers!)
What, then, is the difference between Brackeen and Fulton on the one hand and Nebraska on the other hand? Well, Professor Barrett gave some thought to substantive canons before her appointment. Indeed, she cites her article in the first sentence of Part I-A, and then throughout her concurrence:
Substantive canons are rules of construction that advance values external to a statute. A. Barrett, Substantive Canons and Faithful Agency, 90 B. U. L. Rev. 109, 117 (2010) (Barrett). Some substantive canons, like the rule of lenity, play the modest role of breaking a tie between equally plausible interpretations of a statute. United States v. Santo (2008) . Others are more aggressive—think of them as strong-form substantive canons. Unlike a tie-breaking rule, a strong-form canon counsels a court to strain statutory text to advance a particular value. Barrett 168. There are many such canons on the books, including constitutional avoidance, the clear-statement federalism rules, and the presumption against retroactivity. Id., at 138–145, 172–173.
As best as I can recall, Justice Barrett never wrote about the Free Exercise Clause and Smith, so it is indeed plausible she never gave much thought to the consequences of overruling that case. (Just like Justice Thomas never thought much about Roe before his confirmation!) And Justice Barrett likewise never wrote about the Indian Commerce Clause. (Who did?) But Justice Barrett did write about substantive canons! Perhaps, then, we can predict that Justice Barrett is comfortable "leaping" into issues that she wrote about as an academic. What are those topics? Her Senate Judiciary Committee questionnaire from her Seventh Circuit nomination lists eleven law review articles:
- Catholic Judges in Capital Cases, Marquette Law Review (1998) (with John Garvey) (49 pages)
- Stare Decisis and Due Process, University of Colorado Law Review (2003) (66 pages).
- Statutory Stare Decisis in the Courts of Appeals, George Washington Law Review (2005) (37 pages).
- The Supervisory Power of the Supreme Court, Columbia Law Review (2006).
- Procedural Common Law, Virginia Law Review (2008) (77 pages).
- Stare Decisis and Nonjudicial Actors, Notre Dame Law Review (2008) (27 pages).
- Substantive Canons and Faithful Agency, Boston University Law Review (2010).
- Precedent and Jurisprudential Disagreement, Texas Law Review (2013) (28 pages).
- Suspension and Delegation, Cornell Law Review (2014).
- Countering the Majoritarian Difficulty, Constitutional Commentary (2016) (Book Review) (18 pages).
- Congressional Originalism, 18 University of Pennsylvania Journal of Constitutional Law (2016) (with John Copeland Nagle) (45 pages).
Litigants looking to present a case to the Supreme Court should read these few articles carefully, and cite accordingly. Justice Barrett's willingness to do something that was not done before will depend on how cohesive of a theory the litigants present. Though, in all likelihood, if Justice Barrett is not going to leap on the first jump, she will probably never leap. She said as much in Nebraska:
Thus, even assuming that the federal courts have not overstepped by adopting such canons in the past, I am wary of adopting new ones—and if the major questions doctrine were a newly minted strong-form canon, I would not embrace it. In my view, however, the major questions doctrine is neither new nor a strong-form canon.
The defining feature of Justice Barrett's jurisprudence so far is restraint, rather than originalism. I think Dobbs only came out the way it did because Roe and Casey were in fact egregiously wrong, and those decisions have wreaked decades of havoc on our republic. But beyond Dobbs, at least so far, Justice Barrett will take the road more traveled, and do what was done before.