Justice Barrett on Common Good Constitutionalism

The Justice discusses originalism, common good constitutionalism, and King v. Burwell in a recent interview.

National Review has posted the first half of Dan McLaughlin's interview with Justice Amy Coney Barrett about her new book and other matters. The interview covers a range of topics, including originalism and the interim orders docket, among other things.  This bit on originalism and "common good constitutionalism" seemed to be of particular interest.

NR: . . . We have now four Gen X justices, [the others being] Justices Gorsuch, Kavanaugh, and Jackson. Our generation is actually the first generation to have come of age as lawyers with Scalia opinions, the Federalist Society, and originalism and textualism as serious arguments in the law schools. I had Justice Scalia come to one of my classes once, and debate one of our professors. So, we came of age with that — do you see any difference in the perspective of the four younger justices?

JUSTICE BARRETT: Well, I can only speak for myself, but I think, I guess the difference between when I was in law school and now, in the law just generally, is that originalism has gone from the kind of theory that was often in dissent to now it is a theory held by a majority of justices on the Court. And so, I think when I was a law student and when I was a young lawyer, and frankly, even when I was first a law professor, and I was thinking about originalism, it was a way of critiquing a lot of decisions. But if you're building up, you know, if you're employing it from a position of, hey, this isn't in the dissent, and this isn't a critique, I think it's just a little bit of a different thing. And so I think that now we're at a point where it's probably third-generation originalism.

If you think of first generation as Bork and original intent, and then second generation as Scalia and original public meaning. And I think now it's third generation originalism. I guess I would say, I'm using that to describe debates about, what do you do when the original meaning is evident but not determinative of the meaning? This is, I think, the history and tradition debate that's going on.

I guess I will add one other thing. I think that when originalism in its early iterations, certainly in the first generation and somewhat in the second generation, was very focused on judicial restraint. And that was in part because it was criticizing a method of interpretation that felt a little bit more like the Wild West or more results-oriented. And I think that — this was evident in Justice Scalia's work, as he went on — it's really not a theory of restraint, even though it's a side benefit that if you consider yourself bound by the text, you have an external constraint operating on you. But it's really a theory of law. And I think that's how Justice Scalia regarded it.

But I do think that language of "you should be an originalist, because otherwise you might be a runaway judge," has never really kind of fully gone out of dialogue around originalism.

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.

I was also interested in this little bit about King v. Burwell.

NR: . . . In the book you talk, you actually get into some reasonably recent cases, hot button cases. . . .You have some, I could say, careful criticism, or at least reference to prior criticism of the King v. Burwell case, which I would note, is a case that the Court seems to have gone out of its way not to cite as a precedent since then.

JUSTICE BARRETT: [Laughs]

NR: It's a little unusual for a sitting justice to be talking about things that are fairly recent and hot. Is that something that you made a conscious choice, that you wanted to get people to understand how the Court thinks, even about recent cases?

JUSTICE BARRETT: So, I was very careful to only discuss — the only reason why I discussed King v. Burwell in a critical way is because I was already on the record as a law professor having criticized it. So, I didn't criticize any other precedent. I took all the Court's precedents as I found it. So I didn't criticize, for example, when I described substantive due process doctrine, I wasn't talking about it like I might have from scratch: "Should this be privileges or immunities clause, you know, etc." So, the only areas that I did criticize existing precedent were things where I was already on the record.

The whole interview is interesting. Part two will be posted over the weekend.