At Law & Liberty, I have an essay on the past year in originalism. Every year at the beginning of the Hugh & Hazel Darling February Works-in-Progress Conference, I discuss what I regard as the most significant developments concerning originalism in the past year. The essay is a slightly revised version of my presentation.
Perhaps the most important Supreme Court originalist decision involved statutory originalism—the Loper Bright v. Raimondo case, which held that the Administrative Procedure Act did not allow for Chevron deference. In my view, Chief Justice Roberts wrote a persuasive originalist opinion showing that the APA required courts to decide legal questions without Chevron deference. I rarely find Roberts’s opinions persuasive, but this was an exception.
What makes Loper Bright especially significant is that it is likely to have a substantial impact on a large number of cases. Agencies will have less power to implement their policy agendas and less power to engage in the wild and disorienting swings of policy that result when one administration replaces another. Overturning Chevron deference restores some limits on the executive branch.
Loper Bright is also significant because it may be part of a trend of originalist decisions that constrain the administrative state. Another decision from the past year doing so was SEC v. Jarkesy, which held that a fraud action for civil penalties needed to be decided by a jury in an Article III court. The Supreme Court is standing up to excessive administrative power in ways that originalists should applaud.
I also discuss the debate on originalist methodology in Rahimi:
While many of the justices made significant statements, I want to highlight the differing positions of Justices Barrett and Kavanaugh.
Kavanaugh argued that when the text is unclear, there are only two ways to resolve it—“history or policy.” He favored history. According to Kavanaugh, “the historical approach examines the laws, practices, and understandings from before and after ratification that may help the interpreter discern the meaning of the constitutional text.” By contrast, the “policy approach rests on the philosophical or policy dispositions of the individual judge.” Thus, “history, not policy, is the proper guide.” Given this stark choice between history and policy, it is not surprising that he not only favored considering history at the time of an enactment but also many years later as the best way of discerning the original meaning.
By contrast, Barrett argued, much more persuasively in my view, that it is only originalist history—history from close to the period of the enactment—that provides evidence of the original meaning. While Kavanaugh cites Scalia for the view that evidence from many years after ratification is legitimately considered, even assuming Scalia meant to endorse that practice, even Scalia can nod.
Barrett also argues—although not in response to Kavanaugh—that even originalist history is not limited merely to precise, narrow historical examples. Instead, she writes that “historical regulations reveal a principle, not a mold” and pulling principle from precedent, whether case law or history, is a standard feature of legal reasoning” even though “reasonable minds sometimes disagree about how broad or narrow the controlling principle should be.”
I agree with Barrett, and I might add that the originalist history is seldom entirely silent on a matter and therefore one can also discern a more likely meaning, even if it is not certain. Thus, Kavanaugh’s dilemma between history and policy is less likely to occur when the originalist history is silent. But I also acknowledge that Kavanaugh does have some important points. While late practice may not have originalist force, it was treated both before and after the Constitution as having some legal force, analogously to judicial precedent. And Kavanaugh is on the mark when he writes that “when determining how broadly or narrowly to read a precedent, a court often will consider how the precedent squares with the Constitution’s text and history.”
Read the whole thing, as they say.
Posted at 8:00 AM