One of the central issues in United States v. Rahimi was how to read the Supreme Court’s prior opinion in New York State Rifle & Pistol Association v. Bruen. The majority insisted that the Fifth Circuit had “misunderstood” Bruen. But there was an intriguing wrinkle: The lone dissenter in Rahimi—Justice Thomas—had written the Bruen opinion. And he insisted that his eight colleagues were misapplying that precedent, and that the Fifth Circuit had gotten it right.
This disagreement got me thinking about how originalists ought to interpret judicial opinions. At first, that might seem like an odd inquiry. Originalism is generally thought of as a methodology for interpreting the Constitution, and perhaps statutes too. Why would originalism have anything to say about how to read precedent?
Yet in my view, this reaction would be misguided. A judicial opinion is a legal text, just like the Constitution or a statute. That is not to deny there are important differences between those kinds of texts. But it is worth considering that many aspects of originalist methodology may carry over directly from constitutional and statutory interpretation to the interpretation of case law.
To be clear, the problem of how to read precedent is hardly one unique to originalists. Susan Yorke notes that, in general, “established interpretative frameworks are conspicuously underdeveloped” in this area. If anything, one would think that problem is especially acute for adherents of precedent-based nonoriginalist theories. But the issue is important for originalists as well; to whatever extent originalism allows or requires adherence to precedent, how that precedent gets read will matter. And most originalists forthrightly acknowledge that day-to-day adjudication will generally be about interpreting case law rather than trawling through the ratification debates.
I don’t claim to have worked out an overarching theory of how to read precedent, but here I’d like to offer a few tentative thoughts from an originalist perspective. Consider the question of whether justices’ interpretations of prior opinions they authored should receive special deference. Following the decision in Rahimi, some commentators were quick to suggest that Rahimi simply must have been unfaithful to Bruen. As one district judge remarked, “Rahimi can be seen as a softening of the approach to the Second Amendment taken in Bruen. How else does one explain that the author of Bruen is the sole dissenter in Rahimi?”
But for reasons that will be familiar to most originalists, this emphasis on authorial intent seems misplaced. In constitutional and statutory interpretation, originalists easily recognize that the views of the drafters or sponsors of a provision are not decisive. As Justice Scalia put it, “we are a government of laws, not of men, and are governed by what Congress enacted rather than by what it intended.” Similarly, “[t]he goal of constitutional interpretation is not to capture what James Madison meant but to capture what the constitutional text means.” And while in many instances “the same sources that are relevant to original intent are relevant to original meaning,” the inquiries are conceptually distinct.
Like a piece of legislation or a constitutional provision, a majority opinion issued by the Supreme Court typically reflects bargaining among the justices who constitute the majority. The output of that process is a text, and it is that text (not the secret intentions of its author) that other justices agree to join—sometimes only in part, suggesting careful attention to the precise language of the opinion. Admittedly, because majority opinions are normally signed by a particular justice (setting aside per curiam dispositions), it can be tempting to view an opinion primarily as expressing the views of that individual. But a majority opinion still represents a collective judgment, even if the Court is—in Christopher Green's words—“speaking through a single-justice agent.”
That is presumably why Rahimi was far from the first time a majority of the Court effectively claimed (with relatively little fanfare) that it understood a prior opinion better than that opinion’s author. Off the top of my head, I can think of at least three such cases. (For those curious, they are Gonzalez v. Raich [interpreting United States v. Lopez], City of Austin v. Reagan National Advertising [interpreting Reed v. Town of Gilbert], and Alexander v. South Carolina State Conference of the NAACP [interpreting Cooper v. Harris].) This practice makes a great deal of sense. A contrary norm—under which joining an opinion effectively renders a justice estopped from later challenging the opinion author’s interpretation—would be peculiar. It would likely frustrate the formation of majority coalitions, discouraging consensus and encouraging a proliferation of seriatim opinions.
Taking a slightly different tack, one might argue that the named authoring justice generally bears special expertise about the meaning of what he or she wrote, meriting a sort of Auer-style deference. But this epistemic claim is not necessarily true. If one concedes that authorial intent is not determinative of meaning, then it is hardly obvious that one who writes a text will have a better understanding of what it means than other readers (especially when those readers are themselves well-educated lawyers).
In the constitutional context, some originalists do argue that statements by supporters of ratification (the Federalists) should be given more weight in interpreting the document than assertions by Anti-Federalist opponents. Justice Thomas appears to take this position. In a 1995 concurrence, he wrote that “[w]hen an attack on the Constitution is followed by an open Federalist effort to narrow the provision, the appropriate conclusion is that the drafters and ratifiers of the Constitution approved the more limited construction offered in response.”
But the rationale underlying that position, if applied to judicial opinions, would at most support privileging the views of justices in the majority over dissenters’ exaggerated characterizations of the majority’s holding. It would not support privileging the author’s interpretation when there is disagreement among members of the majority about how to apply the decision—precisely the circumstance presented in Rahimi regarding Bruen, with five members of the Bruen majority believing Bruen dictated a ruling for the government and one member (Justice Thomas) believing Bruen dictated a ruling for Rahimi. In principle, either side could be correct, and the fact that Thomas authored Bruen does not necessarily indicate that the decision in Rahimi was unfaithful to Bruen.
Moreover, returning to constitutional interpretation for a moment, an approach that privileges the subjective understanding of the Federalist ratifiers would apply only to contemporaneous interpretations. Even assuming this approach is legitimate, therefore, it does not justify affording special deference to post hoc interpretations advanced by Federalists. It is one thing to give weight to statements made contemporaneously with the publication or enactment of a legal text, like the statements some ratifying conventions submitted stating the conditions under which they were ratifying the Constitution. (For example, the New York convention listed numerous rights and principles before concluding that it was ratifying “[u]nder these impressions and declaring that the rights aforesaid cannot be abridged or violated, and that the Explanations aforesaid are consistent with the said Constitution.”) But it is quite another thing to give weight to statements made afterwards, which (even if made by the same people) are generally thought to be much less probative of original meaning. As Justice Scalia explained in Heller, little weight should be accorded to “statements of those who drafted or voted for the law that are made after its enactment and hence could have had no effect on the congressional vote”—except, of course, to the extent that such statements help “determine the public understanding of a legal text in the period after its enactment or ratification.”
If that paradigm is applied to the interpretation of a judicial opinion, then it might support giving substantial weight to a concurring opinion that sets out a justice’s understanding of the opinion he or she is joining. Such concurrences are quite common, and they often attempt to narrow or clarify the reach of the majority opinion (think of Justice Kavanaugh’s concurrence in Bruen, which sought to “underscore two important points about the limits of the Court’s decision”). How much weight to assign such concurrences in interpreting a majority opinion remains unsettled; Justice Kagan recently suggested these separate writings should be “ignor[ed]” by lower courts. But whatever might be true of interpretations offered contemporaneously with a decision, there is no reason to privilege post hoc interpretations by justices who authored or joined a particular majority opinion. Their interpretations of course have the power to persuade (à la Skidmore), but it is not clear why their views should be given more weight than those of other justices, or of informed observers (such as law professors) who read the opinion.
Dispute over the meaning of legal texts is nothing new, and most originalists recognize that contestation does not by itself undermine the existence of a “single, best meaning.” Thus, I do not agree with Professor Jacob Charles’ suggestion that the disagreement in Rahimi about how to read Bruen “showcases the limits of an interpretive method tied to recovering the determinate meaning of words written in the past.” Still, originalists would do well to consider more carefully and systematically the ways in which established interpretive methodologies can be applied when the object of interpretation is a judicial opinion.
Posted at 6:25 AM