Justice Barrett explains THaT constitutionalism at CUA’s Columbus School of Law

The inaugural judicial event of our second year of programming for the Project on Constitutional Originalism and the Catholic Intellectual Tradition was A Conversation with Justice Amy Coney Barrett. The conversation, which took place last Thursday September 21, covered a wide range of topics relating to the practices of constitutional interpretation and adjudication in the federal courts.

I’m hardly impartial, as I was Justice Barrett’s conversation partner/question-asker, but I believe our discussion elicited some of the most substantive and extended extra-judicial commentary a sitting Supreme Court justice has offered in public outside the setting of a formal lecture or published paper. No need to trust my judgment on this, though, as the video and audio are publicly available.

There were several journalists present, but (unsurprisingly) not much resulting press coverage; the topics were a bit too dense for soundbites or splashy headlines. The principal beneficiaries were our law students (and other students of the law, whatever their station in life), as Barrett’s teaching experience enabled her to connect ongoing theoretical and judicial discussions to cases and concepts covered even in the first few weeks of the first year of classes. (We discussed, for instance, Justice Scalia’s opinion in Burnham v. Superior Court of California (1990) in relation to International Shoe Co. v. Washington (1945).)

One reason it was easy to cover so much ground in such a short time was the ability to ask about what, if anything, has changed as between the views Barrett has expressed in scholarly publications and the views Barrett has expressed in judicial opinions. Some highlights:

“How has your experience as a judge changed the perspective that you had on constitutional originalism as a law professor?”

Barrett identified the “compressed time frame” of adjudication as an important difference from the capacity for extended reflection available in an academic setting.

A follow-up question focused on the interaction between what the Court has actually done and said it is doing in some recent high-profile constitutional cases, on the one hand, and text-focused constitutional originalism, on the other hand. To motivate the question, I asked whether there was a difference between constitutional originalism based on an oath “to support THIS Constitution” (holding up a pocket Constitution), and  “Text, History, and Tradition” or THaT traditionalism:

“Is there a difference between this kind of constitutional originalism and what’s happening with text, history, and tradition, or that kind of approach?”

Those interested in Justice Barrett’s thinking about this issue should dial in at about the 10-minute mark. Barrett first bracketed tradition and briefly explained the special significance of text and history. The follow-up question focused directly on tradition, asking whether there is a debate on the Court and what the debate is about with respect to tradition understood as post-ratification practices. (This is around the 14-minute mark.) Barrett emphasized the need to treat the history of interpretations with care, ensuring that one is approaching history with a theory or understanding of why one is looking to history. Barrett also underscored the significance of non-judicial interpretations, such as congressional and presidential interpretations. One more follow-up question on this point elicited a comparison by Justice Barrett between the way in which the Court’s appeal to “traditional notions of fair play and substantial justice” in International Shoe pointed to the use of tradition in a way analogous to the way in which “deeply rooted in history and tradition” in Glucksberg also pointed to the use of tradition. I’m paraphrasing a bit, but my initial takeaway was that Barrett suggested one should be cautious about treating this kind of convergence in practice as decisive for one’s theory of interpretation or adjudication.

The next set of questions were about particular doctrines such as tiers of scrutiny, judicial supremacy, and so-called severability analysis. With respect to doctrinal tests like tiers of scrutiny, it may be of some interest that Barrett contrasted areas of the law where there is less precedent (like Second Amendment doctrine) from areas that are thick with doctrine (like First Amendment free speech doctrine).

A more detailed investigation of Justice Barrett’s remarks on judicial supremacy and so-called statutory severability (which I think can and will be increasingly disregarded over time) must wait for another time. As a teaser, though, and an encouragement to listen for yourself, it’s fair to say that (1) Barrett’s critical stance toward judicial supremacy has not fundamentally changed even though she is now on the Supreme Court of the United States, and (2) Barrett believes that what we now call “judicial review” is best understood as rooted in the negative power to disregard an unconstitutional enactment rather than in an active power to “invalidate” or “strike down” laws as colloquially described. Both of these points, amounting to what one could imagine a latter-day Ely writing up as Departmentalism and Disregard, for instance, deserve additional in-depth exploration.

We talked about much more, including Justice Barrett’s concurrence describing the Major Questions Doctrine as relying more on text-in-context than operating as a “substantive canon,” the reasons for writing separately (or not), and the benefits of studying law within the Catholic intellectual tradition.

As an inducement to “listen to or watch the whole thing,” though, what’s been said thus far should suffice.



adjudication-related considerations in Sheetz v. El Dorado

The Supreme Court’s recent decision in Sheetz v. El Dorado County (2024) features a unanimous opinion for the Court by Justice Barrett and separate concurring opinions by three other Justices (Sotomayor joined by Jackson; Gorsuch solo; and Kavanaugh joined by Kagan and Jackson). These separate opinions address themselves in different ways to the narrow scope of what was decided in the opinion for the Court.

The question presented was whether conditions imposed on building permits are exempt from regulatory takings scrutiny because they are imposed pursuant to legislation rather than administratively. The Court answers this question “no.”

Sotomayor (joined by Jackson) wrote separately to note that there is an antecedent question, one not addressed by the Court, which is “whether the permit condition would be a compensable taking if imposed outside the permitting context.”

Gorsuch wrote separately both to note that the Court’s opinion did not address another question and also to suggest that this question had an easy answer. This was the question “whether the Nollan/Dolan test [i.e. the test that governs the Takings Clause inquiry in this context] operates differently when an alleged taking affects a ‘class of properties’ rather than ‘a particular development.’” The easy answer to this question, implied Gorsuch, was “no.”

If this question was so easy, why didn’t the Court address it? It appears that at least three Justices have a different view than Gorsuch. Kavanaugh (joined by Kagan and Jackson) concurred “to underscore that the Court has not previously decided—and today explicitly declines to decide—whether ‘a permit condition imposed on a class of properties must be tailored with the same degree of specificity as a permit condition that targets a particular development.’” The reason to underscore the limited nature of the Court’s decision, presumably, is to prevent others from reading that opinion to have resolved the issue.

From this brief description of the scope of the opinions, the question naturally arises how the Court decided to calibrate the breadth or narrowness of this opinion. The answer to this question is not something that one tries to answer as a matter of constitutional interpretation. The answer turns instead on the nature of the judicial function within the particular place in the judicial hierarchy occupied by the Supreme Court of the United States, together with a justice’s understanding of how best to carry out that function as a single individual on a multimember appellate court with jurisdiction that is both limited and discretionary. To the extent that these kinds of understanding are informed by a distinctive theory, that would be a theory of adjudication rather than a theory of interpretation or law.

Pope Francis’s Remarks to International Federation of Catholic Universities

On January 19, 2024, Pope Francis was scheduled to deliver “a lengthy address” to the International Federation of Catholic Universities. Because he was a “bit short of breath,” he instead got right to the point of what he was going to say and then let his prepared text speak for itself. Here’s what he said viva voce:

I was planning to deliver a lengthy address, but I am a bit short of breath; as you can see, this cold is not going away! I am giving you the text so that you can read it for yourselves. I thank all of you for this meeting and for all the good that our Catholic universities do by communicating knowledge, the word of God and an authentic humanism. Never tire of persevering in the splendid mission of Catholic universities. It is not their confessional status that gives them their identity: that is one aspect, but not the only one. It is perhaps that clear humanism which makes people realize that human beings have values and that these need to be respected. This is perhaps the finest and greatest thing about your universities. Thank you very much.