Posted by arispitzer on Apr 3, 2023 in Obiter Dicta, Per Curiam
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The Constitution after Covid
Justice Jimmy Blacklock*
The following speech was delivered to the University of Chicago Law School’s Federalist Society chapter on February 8, 2022.
* * *
I’ll start with a quote from a white paper issued by McKinsey and Company in May 2020:
It is increasingly clear our era will be defined by a fundamental schism: the period before COVID-19 and the new normal that will emerge in the post-viral era: the “next normal.” In this unprecedented new reality, we will witness a dramatic restructuring of the economic and social order in which business and society have traditionally operated. And in the near future, we will see the beginning of discussion and debate about what the next normal could entail and how sharply its contours will diverge from those that previously shaped our lives.[1]
You probably remember all the talk about the “new normal” back then. The idea that Covid ushered in a new normal was a very stylish way to talk for a while. The phrase was on the lips of all the mainstream opinion-makers in our culture. The media, business leaders, government bureaucracies, the non-profit world, even the commercials on TV all seemed to be singing from the same songbook, as curiously they so often do. Two years later, I don’t hear about the new normal as much. And there are a couple of reasons that might be.
It could be that after the initial shock of the early stages of the pandemic, Americans demanded not a new normal but a return to the old normal. And so maybe the reason you don’t hear about the new normal anymore is because we rejected it. They pitched the idea as hard as they could, but we didn’t buy it—and we’re headed back to where we were. But it could also be that you don’t hear talk about the new normal these days because we’re already living in it. It’s already replaced the old normal. Perhaps what was called the new normal in the spring of 2020 has become just plain normal today.
And if it’s true, as McKinsey and Company thought, that we will witness or have witnessed “a dramatic restructuring of the economic and social order in which business and society have traditionally operated,”[2] then you’d expect we’d witness a similarly dramatic restructuring of our legal order. So have we? Have we entered a new era in constitutional law? And more important than the descriptive question of the extent to which Covid has already changed our legal culture is the prescriptive question: should it change our legal culture? Should we let it? Do you want Covid to bring about a dramatic restructuring of our constitutional order? And if you don’t, what are you going to do about it? These are the questions I’d like us to think about together today.
We’re now almost two years removed from the onset of the coronavirus crisis. The previously unimaginable government interventions that swept the country in the spring of 2020 have subsided. I will say that coming from Texas—where my only daily reminder of Covid is the handful of people who still choose to wear a mask at the grocery store—to Chicago—where many of your civil rights depend on your vaccination status—is a bit of a culture shock. But while government Covid restrictions aren’t vanishing at the same rate all over the country, they do seem to be on a downward trend almost everywhere. Life, in much of America, is pretty much back to what you might call “normal.”
And as life seems to get back to the old normal in many ways, it’s tempting to think that the law will naturally follow suit, and to think maybe we can just put 2020 in the memory hole and carry on as if nothing has changed, as if everything is, well, normal.
But lest we forget, there was absolutely nothing normal about the government ordering American citizens to stay in their homes unless they had an approved reason for leaving. There was nothing normal about the indefinite elimination of the right to peaceably assemble. There was nothing normal about the government ordering houses of worship to close their doors. And there was nothing normal about all of this being done not by legislation but by executive branch officials using unilateral emergency powers.
Given everything that’s happened in our country over the last two years, there has never been a more important time—certainly in my lifetime at least—for us as lawyers and judges to do some serious thinking about our commitment to our Constitution. Among the many concerns motivating our government’s response to Covid, preservation of constitutional rights has not seemed to be very high on many people’s priority lists. As a legal community—and more broadly as a People—we need to confront the wreckage of the last two years openly and honestly. We need to reckon with what happened, and we need to decide what kind of government we want to pass on to the next generation.
I’d like to focus briefly on the question of religious liberty during Covid because it’s one of the starkest examples of previously unthinkable government action that came and went during 2020 and that we as lawyers and judges need to reckon with. It’s of course the very first freedom enshrined in our Bill of Rights, and religious liberty is the reason that so many of our ancestors immigrated to America, whether it was the Pilgrims four hundred years ago or many people from all over the world much more recently.
Given the First Amendment, and given our nation’s history and traditions, many people I’ve talked to—and here I think of my parents, who were raised going to church every Sunday and raised me that way—could never have imagined that the forced closure of churches on a mass scale would ever happen in this country. That’s the kind of thing that might happen in Russia or China, but not here. Maybe if there was a really bad contagious disease going around, almost everybody would choose to stay home from church, but surely the government in America can’t close the churches’ doors against their will.
But it did. And in terms of the legal rationale for it, a lot of people pointed to the Supreme Court’s decision in Jacobson v. Massachusetts[3] from over one hundred years ago which upheld compulsory smallpox vaccination, and they said, essentially, Jacobson means the government can do whatever it thinks is necessary to protect public health in a pandemic. But Jacobson involved compulsory vaccination, and as controversial as that topic may be, there’s no explicit provision in the text of the Constitution protecting people against compulsory vaccination. Without pre-judging the constitutionality of compulsory vaccination, we can all agree that the text of the Constitution doesn’t mention vaccines. There is no anti‑vaccination clause. But there is a Free Exercise Clause, and there is a right to peaceably assemble, although you might not have known it from the way our governments have behaved. My own view—which I’ve expressed in writing[4]—is that courts should very strictly scrutinize pandemic measures that interfere with rights afforded by our state and federal constitutions. If that’s not the case—if the rule is instead that courts should defer to governors, mayors, and public health authorities when they decide it’s not safe for people to gather to worship, to protest, or to simply be with their families and friends—then it seems to me we don’t actually have a right to religious liberty or a right to peaceable assembly. We have only privileges, which we can exercise only when the government thinks it’s safe for us to do it. Of course, the whole point of having a right to something is that you get to do it even when the government thinks you shouldn’t.
I mentioned the Pilgrims earlier. I’m right now reading out loud an American history book to my children in the evenings, and I’ve been struck—as I am every time I think about early American history—by the extreme hardships endured by the early settlers: disease, starvation, drowning at sea. And time after time, in the story of each new colony that was carved out of the wilderness, we read that the reason they endured those unspeakable hardships was so they could worship God freely in the New World. Benjamin Franklin famously said, “Those who would give up essential liberty to purchase a little temporary safety, deserve neither liberty nor safety.”[5] The people who founded this country gave up their safety entirely in the relentless pursuit of liberty. The tension between liberty and safety that we’ve experienced during Covid is nothing new. It’s an intractable question that every generation has to confront. What’s new, perhaps, is the overwhelming preference for safety over liberty that so many powerful institutions in our society demonstrated during Covid. But the question itself—should our government prioritize our liberty or our safety—is among the oldest political questions around.
I use the word “political” intentionally. No public health official or scientist can dictate to a self-governing people how to strike the right balance between safety and liberty in the face of a contagious disease. We the People of this country have the right and the responsibility to answer that question, and we do so through politics. Politics shouldn’t be a dirty word. Politics is a wonderful thing! It is the way a free people shapes its own destiny. It is a precious heritage we have inherited from people who faced hardships we can’t even imagine so that we could rule ourselves through politics, instead of being ruled by unaccountable authorities like kings or so‑called experts. What a blessing it is to be able to resolve our disagreements peaceably through politics, rather than to be dictated to by unaccountable government power exercised in the name of “science.”
We often hear people bemoaning how Covid quickly became “so political.” I think often they’re really complaining about the distasteful personalities involved—or the rancorous and vindictive way we conduct public debate these days—when they complain about things getting too political. That’s understandable. But sometimes what people seem to be saying—and this is really a dangerous idea—is that our response to Covid shouldn’t be political; it should be scientific. They contrast politics and science; they cast politics as dirty and inefficient, and science as pure, noble, and effective. And they chastise us to “Follow the Science.”
There are at least two enormous assumptions in the “Follow the Science” mantra. First, of course, is the assumption that government scientists are capable of accurately understanding the disease and coming up with effective means of combatting it through government policy. Whether that’s a valid assumption is a big topic I don’t want to get into. But let’s just assume it is valid. Even if we assume the government could stop Covid or any other disease if it wanted to, you have to make another assumption before you’d agree that government policy should just “Follow the Science.” You’d have to assume that reduction of the transmission of the disease is the highest and best value to be pursued and that all government policy should pursue that value at the expense of all other values. You’d have to assume that our government should value our safety far more highly than it values our liberty. But that value judgment is itself political. You’ve assumed away the biggest, most important question, a question that a free society can only answer by politics: How willing are we to give up our ancient liberties for the chance we might reduce the impact of a respiratory virus or of any other threat to our safety?
There’s a lot more to this wonderful life than just staying alive. How do we put a value on that? A free people, a sovereign people, would answer these questions of competing values for themselves and then instruct their government to behave accordingly. An unfree people, a subject people, must accept the answer dictated to them by those in power and then helplessly endure whatever hardships the government imposes on them. Which of those descriptions—the sovereign people or the subject people—better describes us over the last two years? It’s a mixed result, I’d say. But there are signs of the sovereign people reasserting themselves.
Last fall, in November of 2021, the People of Texas decided to dictate to their government, rather than the other way around. They chose not to leave it up to scientists or judges to decide whether they can worship as they choose the next time the WHO or the CDC declares a pandemic. They took matters into their own hands by exercising their sovereign right to amend their state constitution. They’ve now added the following provision to their Bill of Rights:
Sec. 6-a. This state or a political subdivision of this state may not enact, adopt, or issue a statute, order, proclamation, decision, or rule that prohibits or limits religious services, including religious services conducted in churches, congregations, and places of worship, in this state by a religious organization established to support and serve the propagation of a sincerely held religious belief.[6]
The adoption of this amendment—this direct rejection by the People of Texas of a pandemic measure they never want to see again—reflects something very healthy, which is that the people are still very much in charge, when they decide to be.
So—before I close, let’s return to where we started—are we already in a new normal? The People of Texas have certainly said the answer is no, at least when it comes to government restriction of religious services. But of course, there are many other ways the world around us seems to have changed over the last few years and continues to change, and now I’m not talking just about Covid. We need to ask ourselves: will we accept these things as the new normal, or will we—as our forefathers did—boldly pursue liberty even in the face of danger? That’s a question each of us has to answer for ourselves. And depending on your answer, there may be a price to pay for standing up for what you believe to be true. Some of you have probably already experienced that. I want to assure you that, at forty-one years old, I have no regrets about any of the times I have stuck my neck out and stood for the truth. My regrets are the times I had the chance to take that risk but chose the safety of silence instead.
You are a group of brilliant young people, with boundless possibilities in front of you. You’re here at this university because you have the raw materials required to be the kind of person who doesn’t just float through life seeking money and pleasure but who helps shape the destiny of your country.
I want to share with you a quote from Abigail Shrier, who was a classmate of mine at Yale Law School. This is from a speech she gave to students at Princeton, which you can find online:
You who are studying at one of the greatest academic institutions in the country only to be told that after graduation, you must think as we tell you and recite from this script—why were you born? What’s the point of being alive? Computers are vastly better at number crunching. They’ll soon be better at all kinds of more complex tasks. What they cannot do is stand on principle. . . . What the computer cannot know is the glorious exertion of the human will when it refuses to truckle in the face of lies and instead publicly speaks the truth.[7]
There’s a different kind of wilderness out there today than the physical one the Pilgrims faced. It’s a wilderness of lies, and it can be just as unforgiving, in its own way, as the physical wilderness our ancestors confronted. In the face of that danger, will you seek the safety of silence? Or will you confront the darkness of the wilderness with the light of truth? Will you accommodate yourself to the new normal? Will your lips repeat things your heart knows are false—things about what is good and true and beautiful in this world, things about the history of this extraordinary country of ours, things about our human nature as men and women—things the world wants you to say but that your conscience tells you are lies? Again, the old conflict between safety and liberty shows itself. There is great safety in accommodating yourself to fashionable opinion. The people at McKinsey who wrote the paper I started with want to hear you say certain things—things that are easy to say but that just aren’t true. You may make more money that way. You may be held in higher esteem by those whose opinions appear to matter most in our society. You may avoid the risks of social conflict and even ostracism that come from standing for the truth in a wilderness of lies. But at what cost? What kind of a life is that? A life spent suppressing the divine spark that lights the fire of truth within you?
No. We are the inheritors of a glorious tradition of liberty and limited government, passed down to us by people who faced dangers beyond our wildest dreams so that we could live today in this beautiful land of abundance and freedom. As with every generation, it is our responsibility to do what needs to be done now—whatever the cost to ourselves—to ensure that our children and our children’s children will enjoy those same blessings. So what will we do? What will you do? Whatever it is for each of us—writing, speaking, working in government, or just raising a family or being a good friend—let us speak the truth. Let us do it boldly. Let us be worthy of the generations who came before us. And let us, with God’s help, pass the test that our Founding Fathers laid down as the measure of each generation. Let us “secure the Blessings of Liberty to ourselves and our Posterity.”[8]
That’s all I have. Thank you.
* The Supreme Court of Texas.
[1] Kevin Sneader & Shubham Singhal, Beyond coronavirus: The path to the next normal, McKinsey & Company (March 23, 2020), https://www.mckinsey.com/industries/healthcare-systems-and-services/our-insights/beyond-coronavirus-the-path-to-the-next-normal.
[2] Id.
[3] 197 U.S. 11 (1905).
[4] In re Salon a la Mode, 629 S.W.3d 860 (Tex. 2020) (Blacklock, J. concurring in the denial of mandamus relief).
[5] Pennsylvania Assembly: Reply to the Governor, 11 November 1755, Founders Online, https://founders.archives.gov/documents/Franklin/01-06-02-0107 (last visited Mar. 6, 2023).
[6] Tex. Const. art. I, § 6-a (2021).
[7] Abigail Shrier, What I told the students of Princeton, The Truth Fairy, (Dec. 8, 2021), https://abigailshrier.substack.com/p/what-i-told-the-students-of-princeton.
[8] U.S Const., pmbl.
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Posted by arispitzer on Jan 10, 2023 in Obiter Dicta, Per Curiam
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Eulogy for Holden Tanner
Justice Jimmy Blacklock*
The following eulogy was delivered at Holden’s funeral on Sunday, March 20, 2022, at the First Baptist Church of Pearland, in Pearland, TX. Footage of the funeral service, including this eulogy, can be accessed at https://www.youtube.com/watch?v=cakUzk3LRyk.
* * *
I need to begin by expressing my deepest gratitude to Holden’s dear wife Stephanie, and to his loving parents, Patty and John, for giving me this opportunity, this great privilege, to be able to share these words with you—in honor of my law clerk, my friend, my brother in Christ, Holden Tanner.
I hired Holden to be my law clerk at the Texas Supreme Court without meeting him at all! All I needed to see was his resume. I was partial to Holden’s resume because it was so much like mine: raised by a Christian family not far from Houston, an undergraduate degree from a state school in Texas, then Yale Law School, with plans to come back to Texas for a judicial clerkship. On paper, we had a lot in common. Unlike me, Holden had gathered all these credentials after being homeschooled—and that part of his background assured me that he came from parents who sacrificed their own comfort and convenience to try to raise up a faithful and virtuous young man. All of us who knew Holden would agree that, with God’s help, his parents did exactly that. We must all thank the Lord first for the blessing of our time with Holden—but we should also give thanks to Holden’s parents and his wife Stephanie for helping to make him the man he was.
Judges compete with each other to attract the best law clerks, and I knew Holden was the kind of student I needed to scoop up quickly before somebody else beat me to it. So, I hired Holden the day I got his resume—after a quick telephone interview—for a clerkship that wouldn’t start for another couple of years.
Little did I know when I hired “The Holden Tanner of the Sterling Resume,” that “The Holden Tanner of Flesh and Blood” would walk in the door and exceed my wildest dreams! Holden was a brilliant, hard-working, extraordinarily well-read, sensitive, generous, and very principled young man. It does not do him justice merely to say—as is true—that he was as talented as any law clerk I could ever hope to have. To talk of Holden Tanner merely as a law clerk is not nearly enough. Holden was one of the most extraordinary men I have ever known—a talented lawyer, yes, but also a philosopher, a theologian, a political theorist, a writer, an artist at heart—and a far better lawyer because he was also all those other things. More important than all that—Holden Tanner was a man after God’s own Heart. Working with him made me a better judge, and knowing him made me a better person.
Holden was really in his element at the Texas Supreme Court—a place where the life of the mind comingles with the affairs of the state. His presence at the courthouse was larger than life. His bellowing laughter rang down the hallways, full of joy for his work and love for his colleagues. His many talents were on full display at the Court. His intellect—sharpened over the years by untold hours of quiet reading and reflection—jumped off the pages of everything he wrote. His good moral judgment—the product of his upbringing and his faith—deepened and strengthened his understanding of the law. But perhaps what impressed me most about Holden was his passion—his relentless drive—to know and to speak the Truth.
Holden devoted himself tirelessly to the improvement of the law through the pursuit of the Truth—with a capital T. Holden saw the Law and the Truth as very closely connected. Like the Founders of our nation, Holden believed that our system of laws should be informed by the natural law, a higher source of law that comes not from fashionable opinion—but from a mature knowledge of our human nature as fallen beings, created in God’s image, who owe each other certain moral obligations. Holden believed that good legal rules begin as moral rules, and he believed that morality is an objective truth we can know, not an opinion we can choose.
Natural law, in Holden’s words, “reminds us that law is an institution with a purpose: to proscribe evil, protect virtue, and promote human flourishing. It holds that law, as a system of obligations, is a subset of morality. Natural law upholds the moral worth of the individual.”[1]
Holden worked as hard as anyone I have ever worked with, and he did it in passionate pursuit of the Truth. He counseled me on case after case; he frequently volunteered to delve deeply into cases I had not even assigned him; and he helped me write opinions of the Court. His words, his ideas, are now part of Texas law because of his fine work on some of those opinions, and Texas is better for it. In the midst of all that work for me, he also wrote scholarly law review articles in his spare time that will be read and cited by other influential thinkers for years to come.
He did all of this graciously, joyfully, and selflessly. It was very clear to me that the reason he worked so hard was not to accumulate riches or accolades for himself; he didn’t do it for himself. He did it for love. He did it because he loved God, he loved his family, he loved his neighbor, and he loved his country. He dreamed not of money or power for himself. Instead, his dream was that his children and his children’s children would live in a world governed by the Truth, not by lies.
In addition to using his talents as a thinker and a writer to promote the Truth through the law, Holden boldly spoke the Truth every time he had the chance. You rarely had to ask for his opinion, but you were eager to hear it because you knew it came from a reliable and well-informed source.
Our world today, despite all our modern technology and conveniences, can sometimes feel spiritually like a barren wilderness, a wilderness of lies and half-truths about what is really good, true, and beautiful in this wonderful life God has given us. Holden was like a torch in the wilderness, a light in the darkness of this world. A bright light. And he did not hide his light under a bushel.
There are many different ways to respond to the lies the world tries to tell us. One way is to seek the safety of silence, to accommodate ourselves to the lies we hear all around us, to tell ourselves that maybe the lies aren’t really so bad, perhaps even to repeat with our own lips things we know to be lies—just to get along or avoid trouble.
Another way to respond to the lies of this world was Holden’s way. To boldly proclaim the Truth to all who have ears to hear it. To feel the divine spark within you lighting the fire of Truth—and not to hide it because you’re afraid of what people will think about you, but to let it shine for all to see. To stand boldly for the Truth like a prophet in the wilderness. That’s what I saw Holden Tanner do—with every breath of life God gave him.
And do you know what happened? Was he reviled or scorned or cast out for standing firmly for what he believed? Not that I saw. Quite the opposite, in fact. Holden was loved by everyone at the Court, especially by all the other law clerks, many of whom probably didn’t agree with a word he said. Yes, he stood firmly for the Truth, but he did it in love. He did it with a tender and genuine spirit that made it impossible for those who disagreed with him to also dislike him.
C.S. Lewis, in his timeless classic, The Abolition of Man,[2] wrote that modern education—which tries to deconstruct and demystify the ancient heritage passed down to us by our ancestors—was creating a generation of “Men Without Chests.” These Men Without Chests lacked the confident moral judgment necessary to act virtuously. These Men, Lewis thought, would be particularly susceptible to modern fads and propaganda because they lacked a firm grounding in objective moral truth rooted in tradition and faith. Holden Tanner, ladies and gentlemen, was no such man. C.S. Lewis, I am confident, is going to absolutely love Holden Tanner when they meet each other in the presence of God!
Holden Tanner was a Man With A Chest. A big one. He stood for the Truth in a wilderness of lies. He defended the Faith that was his heritage and his hope. He stood for eternity in an age of forgetfulness. It was my great honor to stand beside him, even for a brief time.
Holden cannot be replaced, but we can remember him and honor him by ourselves lifting up the torch of Truth, spoken in love, which Holden carried so boldly and so well. To his parents, his wife Stephanie, his precious children Alex and Cordelia: you should be very, very proud of this great soul through whom God blessed us all so mightily—my dear friend, Holden Tanner.
Let me end by telling you that I know from multiple conversations with Holden that his hope was in salvation through Jesus Christ and that he firmly believed that when his time on Earth was through, the Lord would take him to his eternal home. Holden’s hope, I know, for each of us, is that by faith we would all be reunited with Holden—and with all those who have gone before him—in God’s presence, when our time has come.
The Lord gave, and the Lord hath taken away; blessed be the name of the Lord.[3] Amen.
* The Supreme Court of Texas. Holden Tanner clerked for Justice Blacklock in 2021–22.
[1] Holden T. Tanner, How to Recover Conservative Judging, Law and Liberty (August 24, 2021), https://lawliberty.org/how-to-recover-conservative-judging/.
[2] C.S. Lewis, The Abolition of Man (1943).
[3] Job 1:21 (King James).
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Posted by arispitzer on Oct 25, 2022 in Obiter Dicta, Per Curiam
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Judging Titles
Benjamin Beaton*
Editor’s Note: This is the first installment in JLPP: Per Curiam’s series titled Obiter Dicta, which will feature speeches and other works by judges from across the country.
* * *
The text below is modified slightly, for clarity and non-concision, from an address delivered at the investiture of Judge Benjamin Beaton on May 20, 2022, at The Palace Theatre in Louisville, Kentucky. Consistent with Judge Beaton’s advice to members of the bar, this abridgement omits a platitudinous litany of humble acknowledgements familiar to the genres of judicial ceremony and academic legal writing alike. In their stead, this “scholarly” republication adds an equally familiar (and no less unwelcome) profusion of footnotes, several of which bear a tenuous relationship to the law. A year into a lifetime of answering to “Your Honor,” Judge Beaton urged the assembled lawyers to resist that ungrammatical and un-American honorific: at least in his courtroom, the title is factually dubious and legally misconceived. Article III invests judicial power—to interpret laws, decide disputes, and explain rulings—that rests on authority external to and independent of any status or nobility. Emphasizing the role of “Judge,” rather than the status of “Your Honor,” better serves jurists, litigants, and the rule of law.
* * *
The lawyers here today are the ones I’d like to address most directly, because my appointment and oath affect you and your clients most directly. Our conversations are usually clipped and formal, recorded by the court reporter and measured in 6-minute billing increments. Today I have a little longer to reiterate and explain an idiosyncratic request some of you heard during our early hearings: “Good morning, Your Honor,” you all would politely say. “That’s correct, Your Honor.” “Good point, Your Honor. . . .” Finally I’d interject: “Counsel, enough with this ‘Your Honor’ stuff. Please just call me Judge.”
Now please don’t worry about a rap on the knuckles for using this most customary of phrases in Louisville’s Courtroom 2: as a Burkean, I understand that old habits can and should die hard.[1] Rest assured you aren’t at risk of sanctions. Though let me insert a broad disclaimer that I’m not announcing district-wide policy.[2] At least in my courtroom, just as not every wrong (and not even every right!) has a judicial remedy, 3 not every violation carries a penalty.
And that’s a good thing, because taking a public position against the term Your Honor exposes me to a charge of inconsistency. A few years ago Judge Amul Thapar and I wrote an article that included a rhetorical question: “Why does it matter whether law clerks call their boss ‘Judge,’ ‘Your Honor,’ ‘Amul,’ or ‘Hey you’?”[3] We were responding to the famous and prolific Judge Richard Posner, who devoted half of a book about the federal judiciary to issues that struck us as trivialities.[4] “Who cares about a judge’s choice of titles,” I thought at the time, when the rest of his book says judges may circumvent text and precedent “by hook or by crook” to achieve a result the judge prefers.[5]
But now, viewing this question of titles from the other side of the bar, I wonder if we missed a deeper point (though probably not the one Judge Posner was driving at). Because the difference between Your Honor, on the one hand, and Judge, on the other, does strike me as potentially significant.
Now I readily concede that my position on honorifics is an outlier. I learned this the hard way as a young lawyer at Sidley Austin. During an utterly ordinary scheduling teleconference for a case in the Western District of Virginia, I committed the cardinal sin of addressing the judge as Sir rather than Your Honor. Gordon Todd jumped out of his chair and slammed the mute button. He’d seen lawyers twice as good as me dressed down for half that offense. Just a rookie mistake, he probably thought.
But no, my guerrilla campaign against judicial honorifics dates back much further. During my clerkship, I bucked hard against the convention of referring to members of the Supreme Court as Justice rather than judge. It was all so obsequious. “Good morning, Justice.” “That’s an excellent point, Justice, and well put too!” “Oh, did you hear? My Justice said the wittiest and most profound thing!”
Maybe this manner of speech came easy to my co-clerks who studied under dons and socialized at final and eating clubs.[6] But it sounded like fingernails on a public-school chalkboard to this kid from Paducah.
Even worse than Justice, I’ve now come to think, is the title of Your Honor. How jarring those words are to a lawyer-turned-judge when he starts entering the courthouse through the back door! On December 4, 2020, Andrea and I arrived—dragging my commission and a Bible and our four children—running late for my own swearing-in. The security officers were offering their warmest welcome despite my harried state. “Oh don’t worry about that metal detector, Your Honor.” “Nice to meet you, Your Honor.” About the fifth or sixth Your Honor stuck in my craw. “How the heck do you how ‘honorably’ I’ve been behaving?”, I asked the chattiest guard. “All you know is that I’m a judge, so that’ll do just fine.”
As a descriptive matter, of course, “Your Honor” is aspirational at best. As a matter of basic English usage, we’ll generously say it’s non-standard, if not ungrammatical. Why are you addressing only my honor (whatever abstract portion that might represent) and not the man in full?
For goodness sakes, this country fought a war and wrote a Constitution to blot out titles of nobility. It’s right there in Article 1, Section 9, Clause 8: “No Title of Nobility shall be granted by the United States.”[7]
Titles, Ben Franklin warned, posed a risk to our new republic. They could render their holders “proud, disdaining to be employed in useful arts, and thence falling into . . . servility and wretchedness.”[8] That may go a bit too far: I don’t see any judge here who disdains the useful arts.[9]
But I do think many of you would agree that a daily dose of honorifics can’t help but affect any judge,[10] and not necessarily in a good way.[11] In fact, one old friend here today specifically volunteered to monitor me for signs of early-onset black-robitis. Although I worry about his reliability: since then he’s decided he wants to become a judge, too.
I would confess to him that this emphasis on words and titles has provided some solace for a husband who’s always felt a bit self-conscious about the disparity between his work and that of his wife. During a Halloween party years ago at my old law firm, our daughter Kate—then just two or three—dressed up as Lulu the Ladybug. Fully sugared up after indoor trick-or-treating, she clambered into my office chair and called for her parents’ attention. “Look, I’m Daddy. I do emails!” Then she twisted the knife: “Mommy takes care of sick babies’ hearts!” As the Romans probably said: In saccharo veritas. According to many pediatricians, children are the best antidote for black-robitis.
But we do need some way to refer to the people whose job it is to decide disputes, partly because the name itself carries legal significance. In the 1950s, a law journal asked the legendary Henry Friendly, for whom my one-time boss Judge Randolph later clerked, what changed most during the first year on the Second Circuit. He identified “the enormous change in the effect of the simple act of signing [the judge’s] name. He does something he has done thousands of times without any great consequences attaching to it; then suddenly . . . ‘the whole power of the state will be put forth, if necessary,’ to carry out his will.”[12] Over time that’s bound to leave an impression on a person, too.
So if we’re going to use titles and names to carry out these official duties, then “Judge” seems like the least risky option. It has historical pedigree and linguistic precision on its side: While Your Honor is a term of nobility that English judges apparently borrowed from French hereditary aristocrats,[13] “judge” is a title that we find in the Old Testament, which used the term to describe the leaders who were not kings. The role rotated and was not inheritable.[14] And although I’m no Hebraic scholar, my understanding is that the ancient writings used the term judge more as a verb rather than a noun, much less a title or honorific. As in: “Tola the son of Puah, the son of Dodo, a man of Issachar . . . judged Israel twenty-three years.”[15]
And that distinction—between a professional duty and a personal rank—is the one I’m trying to highlight. Judges aren’t the law, despite whatever Yale might be teaching these days.[16] And what judges say and write doesn’t supplant the actual law as written down in the Constitution and code books. What judges say only really matters if it’s necessary to resolve an ongoing dispute.[17] So maybe the country would be better off if the legal profession devoted less attention to the status of judges and more attention to the act of judging.
Because thinking about the responsibility of judging, rather than the status of Your Honor, reflects an important and different cast of mind.[18] Some Americans have grown accustomed to hearing and saying that judges “make” law.[19] But that’s almost never right. Let’s choose our words carefully: To judge or adjudicate a dispute, federal judges apply law made by someone else. And we do so through three main steps: we interpret, we decide, and we explain.[20]
First, interpretation. If a judge is faithfully interpreting law enacted by others, that judge is probably not making law.
Consider the difference between two requests that I’ve fielded in this new job. “Your Honor, just use your inherent authority to issue a worldwide injunction against the United States.” This is a bold request indeed! (In chambers we call them hold-my-beer motions.)[21] Are the lawyers aware that the Senate and President just a few months ago made me a judge over only one half of one state? And now they want me to tell the entire federal government what it can’t do anywhere in the world? You’d better have a pretty good explanation where such far-flung authority comes from.[22] But some lawyers (again, surely none in this room) probably are just thinking about judicial power, not legal authority: why not take a shot with this judge?
Contrast that with a second request that called for interpretation, not simply power: “Judge, please issue a nationwide injunction. I know it seems a little crazy, but Congress actually enacted a law entitling my client to seize property, without a hearing, from unknown people, who probably won’t ever receive a hearing.” That is also kinda bonkers—but if the law says what the lawyers claims, then why would it be any more appropriate or restrained for me to decline that injunction rather than to grant the relief the law requires? This would mean faithfully executing Congress’ command, wild though it may be.[23]
Viewed this way, the act of interpretation focuses on a source of authority outside the judge, not the mere status of the judge and whatever moral philosophy or utilitarian calculus she happens to have. Flipping the default from “Why not?” to “Says who?” is one of the most important ways to refocus on the content of the law rather than the identity of the judge.
Doing so can avoid problems big and small. To take an extreme example, think of the infamous Dred Scott[24] case, in which the pre-Civil War Supreme Court grasped to protect the institution of slavery by “engraft[ing] on [the Constitutional text] a substantive exception not found in it,” as Justice Benjamin Curtis explained in dissent.[25] The majority’s decision to ignore the text in favor of “reasons purely political, render[ed] its judicial interpretation impossible.”[26]
“Political reasons,” he continued, “have not the requisite certainty to afford rules of judicial interpretation. They are different in different men. They are different in the same men at different times. And when . . . the fixed rules which govern the interpretation of laws [are] abandoned . . . we have no longer a Constitution; we are under the government of individual men, who for the time being have power to declare what the Constitution is, according to their own views of what it ought to mean.”[27]
Now that’s chilling stuff that most of us, thank God, will never confront.
But the importance of constrained interpretation comes up all the time in more mundane ways, too. Take the oft-mocked Federal Rules of Civil Procedure. Are they riveting reading? No. Do they tell me what to do? Usually.[28] Do they and other laws, given their original meaning, as Henry Monaghan of Columbia said, at least make clear what not to do? Almost always. And that saves me, and you lawyers, and even your clients in the real world, from many errors. We can all read those same words on the page, and that shared act of interpretation reduces our areas of confusion and disagreement.[29] Compared to guessing the mindset of “Your Honor,” interpretating legal texts makes the legal process far more predictable and egalitarian.[30]
The second part of the judicial task is deciding individual cases. Not positing broad rules like a legislator, or perhaps a French aristocrat. To me this is where the oath I just took has its real teeth: “to administer justice without respect to persons,” another odd and wonderful old phrase.[31]
Notice how the oath describes the judge’s status relative to the law: it refers to the duties, not the privileges or honor, of “a judge under the Constitution and the laws.”[32] We swear an oath not to do right as we see it, as a philosopher-king might, but instead to faithfully follow the law as agents would serve their principals—in accordance with the interests and instructions of someone else, not the agents’ own self-interest.
To be sure, disinterestedness is not intuitive for most humans, which is why the law’s formal rules are so important. Formalism is another word that gets a bad rap.[33] But imposing written constraints on judicial decisionmaking minimizes the role of a particular judge, and thereby maximizes the rule of law.
This too is aspirational. Even Justice Scalia, textualism’s foremost champion, conceded that “the main danger in judicial interpretation of the Constitution—or, for that matter, in judicial interpretation of any law—is that the judges will mistake their own predilections for the law. Avoiding this error is the hardest part of being a conscientious judge; perhaps no conscientious judge ever succeeds entirely.”[34]
But the fact that deciding is difficult is no cause for surrender. Rather, it’s a reminder of how hard we judges should work at faithful decisionmaking.
Testing our intuitions against others’ “helps,” as Justice Ginsburg told me, “to think a little bit harder about these cases.”[35]
And as Judge Randolph used to say, channeling Judge Friendly, judges must decide based on a principle.[36] Hard thinking and principled reasoning can place a lot of strain on a judge.
But as Justice Thomas told my co-clerks and me once, in a line that called to mind my grandparents as I’m sure it did his: “Our jobs aren’t hard work, they’re just long work.”[37] And in judging, as in parenting, as in life, it’s not about you—much less your own honor. It’s about deciding how you’ll apply the words and lessons of those who came before you—to the questions that affect those around you.
Which brings us to the third and final aspect of judging: explaining our decisions and interpretations. My clerks certainly will attest that this aspect of the job consumes a disproportionate amount of my and their time. But that’s time well spent if it reinforces the perception—and the reality—of a legal system driven by judges judging, rather than Your Honors choosing.
Now anyone who’s read much legal writing understands that it can either illuminate, or it can obscure, the reasons for a decision. But we try our best to write in a way that clarifies not only what the decision is, but also why it is.
How to persuade someone that a ruling is the product of reason and law, not just personal choice? To start, my opinions don’t use the first-person singular. And I urge students and young lawyers that they shouldn’t use the “I” word, either. With all due respect, counsel, the law doesn’t much care what you think, or want, or feel.[38] Please show me the text or precedent—the external source of authority—that constrains my decisionmaking and compels the result you seek. As with your advocacy, so too with my orders. When I can explain the result in a way that makes clear why it flows from the law, not from me, that’s when the opinion is ready.
Justice Barrett offered a great tip on how to get there: read the opinion from the perspective of a family member of the losing party.[39] Would the decision make sense? Would it identify a governing principle apart from the judge’s own preferences? Would it treat the losing party as somehow less than honorable?
How can someone burdened by years of legal training, and insulated by countless honorifics, step into the shoes of a mother who wonders why her son is going to jail rather than coming home? One way to start is for judges to think less of their status relative to others, and more about their status relative to the law.
My judicial hero, John Marshall Harlan, was someone who knew how to view legal questions through eyes of others.[40] He reminded us that “all citizens”—even judges—“are equal before the law. The humblest is the peer of the most powerful.”[41]
Not by coincidence, perhaps, this product of Kentucky and Centre College benefited from what Larry Matheny, Centre’s John Marshall Harlan Professor of Government, later described as a “genuine [liberal arts] education.”[42] One that “teaches us to practice intellectual moderation,” “warns us of the danger of impulsive judgement,” and “instills in us the habit of agreeing or disagreeing in graduated terms.”[43] An education that “counsels caution and calm second thoughts,” and that “struggles for those old Aristotelian virtues of prudence and proportion.”[44]
Those sound like pretty good habits of judging. They require effort and discipline, not status or honor. And they ask a lot of us judges. But much is required of those to whom much is given.[45] And the judicial oath has given very much indeed. So I’ll commit to you, who have also given me so very much, that I’ll strive to judge well—to interpret, decide, and explain based on the law as written. And in return, I’ll ask that you strive to never call me Your Honor.
* District Judge, United States District Court for the Western District of Kentucky. Many thanks are due to the clerks and interns who, in their role as loyal critics, helped develop the ideas set out in this speech and—far more important—helped deploy them in judicial decisions.
[1] See Edmund Burke, Reflections on the Revolution in France 52 (Frank M. Turner ed., 2003) (1790) (“[I]t is with infinite caution that any man ought to venture upon pulling down an edifice which has answered in any tolerable degree for ages the common purposes of society, or on building it up again without having models and patterns of approved utility before his eyes.”).
[2] According to some, “[t]he custom is to use ‘Your Honor’ when speaking to a judge in the courtroom, and the less formal ‘Judge’ only outside the courtroom.” Catherine Thérèse Clarke, Missed Manners in Courtroom Decorum, 50 Md. L. Rev. 945, 994 (1991). But customarily does not always mean correctly, as even Burke would admit. His theory of reform, as described by J.G.A. Pocock, rested on common-law notions that “custom was constantly being subjected to the test of experience, so that if immemorial it was, equally, always up to date.” Burke and the Ancient Constitution—a Problem in the History of ldeas, in Politics, Language and Time: Essays on Political Thought and History 202, 231 (1971).
3 Contra Marbury v. Madison, 5 U.S. (1 Cranch) 137, 147 (1803) (not granting a remedy to Mr. Marbury based on lack of jurisdiction).
[3] Amul R. Thapar & Benjamin Beaton, The Pragmatism of Interpretation: A Review of Richard A. Posner, The Federal Judiciary, 116 Mich. L. Rev. 819, 821 (2018).
[4] Richard A. Posner, The Federal Judiciary: Strengths and Weaknesses (2017).
[5] Id. at 80.
[6] In recent years, most Supreme Court clerks come from the Yale and Harvard Law Schools. See Adam Feldman, The New Clerks in Town, EmpiricalScotus (Apr. 11, 2022), https://empiricalscotus.com/2022/04/11/the-new-clerks-in-town/ [https://perma.cc/TG6Y-Z6AX]. And a great many Yale and Harvard law students come from . . . Yale and Harvard Colleges. See Bulletin of Yale University, Series 114 No. 10 at 115 (August 10, 2018), https://bulletin.yale.edu/sites/default/files/yale-law-school-2018-2019.pdf [https://perma.cc/LSB9-TA8W].
[7] The question whether “Your Honor” amounts to a title of nobility has generated at least a little litigation. One ambitious and apparently like-minded pro se plaintiff, undeterred by notions of judicial immunity, sought discovery(!) regarding U.S. district judges who “allow[ed] themselves to be referred to as ‘your, honor,’” thereby “tak[ing] a title of nobility,” such that their “citizenship is void; they are foreign powers, [with] no standing in law [whose orders] are void from the beginning and confer no power to enforce.’” Pendleton v. United States, No. 396-cr-1, 2008 WL 11417642, at *1 (N.D. W. Va. June 24, 2008) (alteration in original). Alas, the court rejected this contention based on its lack of “coherent factual allegations.” Id. Whether a litigant armed with the latest corpora or Founding Era historical research would meet the same fate, however, apparently remains an open question. At least according to Garner, the “nobility” includes “[p]ersons of social or political preeminence, usu. derived by inheritance or from the sovereign.” Nobility, Black’s Law Dictionary (11th ed. 2019). And during Blackstone’s time, titles of nobility in England “consist[ed] of dukes, marquises, earls, viscounts, and barons.” 1 William Blackstone, Commentaries on the Law of England 479 (Herbert Broom & Edward A. Hadley eds., 1875) (1765).
[8] Letter from Benjamin Franklin to Sarah Bache [Franklin’s daughter] (Jan. 26, 1784), in 10 The Works of Benjamin Franklin 275 (John Bigelow ed., 1904).
[9] Supreme Court Justices, however, arguably should devote more time to their useful art. Since the Justices stopped riding circuit in 1911, see Judicial Code of 1911, Pub. L. No. 61-475, 36 Stat. 1087 (abolishing the circuit courts and fully transferring their jurisdiction to district and appellate courts), they have embraced the flexibility their discretionary docket affords. The Court has granted certiorari review of fewer and fewer cases over time. In 1890, the Court “disposed” of 610 cases. See Felix Frankfurter & James M. Landis, The Business of the Supreme Court at October Term, 1930, 45 Harv. L. Rev. 271, 307 (1931). “[T]he Roberts Court,” by contrast, has recently “average[d] less than 70 signed opinions per year.” Meg Penrose, Overwriting and Under-Deciding: Addressing the Roberts Court’s Shrinking Docket, 72 SMU L. Rev. F. 8, 8–9 (2019). Has this contributed to an idle-hands problem? Justice Breyer, for his part, recently observed that too many dissenting opinions clog the Supreme Court’s docket these days. Christina Pazzanese, Breyer Offers Advice on Being on Losing Side, Harv. L. School (Sept. 12, 2022), https://hls.harvard.edu/today/breyer-offers-advice-on-being-on-losing-side/ [https://perma.cc/G2WC-T3FN].
Could more decided cases and correspondingly fewer pages of separate opinions aid the Court’s efficacy? At least some on the lower courts suspect it might. And if the Justices can’t find enough cert-worthy petitions, perhaps they should revisit the lower-court caseload they abandoned in the 1910s. Riding (Zooming?) circuit once again “would require [judges] to apply their tests and precedents in the mine-run of litigated disputes, rather than in their more curated appellate dockets. This, more than anything, could lead judges to prefer bright-line rules to complex opinions, fractured decisions, and multifactor tests, which are time-consuming and costly to litigants and lower-court judges.” Thapar & Beaton, supra note 3, at 823.
[10] It might also be bad for the general public. No less an authority than Joseph Story, referring to the Titles of Nobility Clause, wrote that “[d]istinctions between citizens, in regard to rank, would soon lay the foundation of odious claims and privileges, and silently subvert the spirit of independence and personal dignity, which are so often proclaimed to be the best security of a republican government.” 3 Joseph Story, Commentaries on the Constitution of the United States 215 (1833).
[11] But see Edward J. Devitt, Your Honor, 55 Judicature 144, 144 (1971) (“Being called ‘Your Honor’ day in and day out is a constant reminder, not alone of the prestige of the office, but more importantly of the tremendous power and heavy responsibility and absolute independence of the federal judge.”). This of course begs the question whether Lord Acton was right about tremendous power and absolute independence.
[12] Henry J. Friendly, Reactions of a Lawyer—Newly Become Judge, 71 Yale L.J. 218, 218 (1961) (quoting Oliver Wendell Holmes, The Path of the Law, in Collected Legal Papers 167 (1920)).
[13] According to the Oxford English Dictionary, the word “honour” was partly borrowed from the French “honneur,” which denoted a “mark of esteem,” as well as “feudal possession” and “dignity.” See honour | honor, Oxford English Dictionary Online, https://www.oed.com/view/Entry/88227, (last accessed Sept. 28, 2022). English use of the phrase “Your Honour” dates back at least to 1551. See id. The phrase “Your Honour” is defined as both “(a) a deferential form of address for any person of higher rank or status” and “(b) a title of respect or form of address for a person holding a particular office, esp. that of court judge.” Id. English judges were referred to as “Your Honour” at the time of the revolution, and the same term was used to referred to colonial judges at least as far back as 1735. See Neil Postman, Building a Bridge to the 18th Century: How the Past Can Improve Our Future 3–4 (Vintage Books 1st ed. 1999).
[14] Indeed, when Gideon’s son Abimelech conspired to inherit his father’s role as judge, the Tanakh substituted the Hebrew word for “ruling” or “reigning” in lieu of “judging.” See Judges 9:22. The cautionary tale of Abimelech is almost literally too on the nose: his unsubtle name meant “my dad is king,” he died on the battlefield after a brave woman in a tower under siege dropped a millstone onto his head, and his misogynistic last words ordered his servant to run him through so no one could say he died at the hands of a woman. After all that, the Hebrews returned to kritarchy: rule by judges. Id. at 10:1–2.
[15] Judges 10:1–2 (New King James Version).
[16] Compare [YLS Prof.] Stephen L. Carter, Kavanaugh, Nixon and the Death of Rational Discourse, Bloomberg (July 27, 2018, 10:00 AM) https://www.bloomberg.com/opinion/articles/2018-07-27/kavanaugh-nixon-and-the-death-of-rational-discourse?leadSource=uverify%20wall [https://perma.cc/ZTC3-PDPG] (“There must be some doubt that the constitutional structure is enforced by an opinion that says no more than: ‘The President cannot assert that he is the law, because we are the law.’”), with Aaron Sibarium (@aaronsibarium), Twitter (May 3, 2022, 8:39 PM), https://twitter.com/aaronsibarium/status/1521650701092458498 [https://perma.cc/7B7F-6V9B] (documenting Yale Law students chalking “WE ARE THE LAW” on school grounds).
[17] As Justice Scalia explained in Lujan v. Defenders of Wildlife, 504 U.S. 555, 576 (1992), although “[v]indicating the public interest . . . is the function of Congress and the Chief Executive,” “‘[t]he province of the court . . . is, solely, to decide on the rights of individuals.’” (quoting Marbury, 5 U.S. (1 Cranch) at 170). See also PDK Labs., Inc. v. Drug Enforcement Admin., 362 F. 3d 786, 799 (D.C. Cir. 2004) (describing “the cardinal principle of judicial restraint” that if it is not necessary to decide more, it is necessary not to decide more”) (Roberts, J., concurring in part); Jacobson v. Fla. Sec’y of State, 974 F.3d 1236, 1255 (11th Cir. 2020) (Pryor, C.J.) (judges must avoid the writ-of-erasure fallacy that we can or may “erase a duly enacted law from the statute books”) (quotation omitted).
[18] Judge Devitt, supra note 11, at 144, again supplies the counterpoint: “The appellation ‘Your Honor’ is the trigger which commands our conscience to proper personal conduct and to the faithful performance of our duties, and it is ‘Your Honor’ which encourages judicial patience, inspires industry, nurtures prudence and counsels us with the great virtue of common sense.” Woe to the advocate who failed to pull that all-important trigger in Judge Devitt’s courtroom!
[19] See, e.g., David A. Strauss, Common Law Constitutional Interpretation, 63 U. Chi. L. Rev. 877, 935 (“Even sudden changes [to the Constitution] are possible . . .. [T]he common law approach, unlike some other methods, allows judges to make them.”); Strauss, Does the Constitution Mean What It Says?, 129 Harv. L. Rev. 2, 2–5 (2015); Strauss, The Irrelevance of Constitutional Amendments, 114 Harv. L. Rev. 1457 (2001).
[20] “A judge ought, moreover, not only to decide correctly, but to give correct reasons for his decision, so that, the grounds on which it rested being understood, the judgment itself may afterwards be confidently applied.” 1 William Blackstone, Commentaries on the Law of England 6–7 (Herbert Broom & Edward A. Hadley eds., 1875).
[21] Perhaps these requests are not so surprising anymore, given the increasing willingness of federal judges to issue nationwide injunctions. See Z. Payvand Ahdout, Enforcement Lawmaking and Judicial Review, 135 Harv. L. Rev. 937, 991 (2022) (“[P]arties are asking and courts are issuing these injunctions with such frequency that [statistics] quickly become out of date.”).
[22] Compare J.P. Morgan Sec. LLC v. Kittell, 554 F. Supp. 3d 895, 896 (W.D. Ky. 2021) (“No matter how convenient and agreeable . . . federal courts may not dispense unsupported injunctions on the parties’ request; these orders require articulated judicial findings of law and fact.”), with Lexington Ins. Co. v. Ambassador Grp. LLC, 581 F. Supp. 3d 863, 870 (W.D. Ky. 2021) (entering “consent” order “[d]espite the uneasy relationship between consent decrees and federal courts’ limited Article III jurisdiction,” because “the law of this circuit and the Lanham Act authorize and—on this Court’s reading, at least—effectively compel approval of the parties’ proposed resolution”).
[23] See generally Merch Traffic, LLC v. Does, — F. Supp. 3d. —-, No. 3:21-cv-576, 2022 WL 3154202 at *1 (W.D. Ky. Aug. 8, 2022) (“How is any of this lawful?”).
[24] Dred Scott v. Sandford, 60 U.S. 393 (1857). Dred Scott sued for his freedom based on his previous travel from Missouri, a slave state, to the free states of Illinois and Wisconsin, where Scott resided for several years. Id. at 431. The Supreme Court, however, held that it lacked subject-matter jurisdiction over the case because Scott was not a “citizen” for purposes of diversity jurisdiction under Article III. Id. at 406. The Court went on to hold that Congress lacked constitutional authority to outlaw slavery in U.S. territories, because doing so would deprive citizens, such as Sandford, of their “property” without due process of law. Id. at 450–52.
[25] Scott v. Sandford, 60 U.S. at 620 (Curtis, J., dissenting). See William H. Pryor Jr., Against Living Common Goodism, 23 Federalist Soc’y Rev. 24, 39–40 (2022) (“Justice Curtis . . . repudiated the approach that would allow judges to read unmentioned exceptions into unambiguous texts.”).
[26] Id.
[27] Id. at 620–21.
[28] See, e.g., Jack B. Weinstein, After Fifty Years of the Federal Rules of Civil Procedure: Are the Barriers to Justice Being Raised?, 137 U. Pa. L. Rev. 1901, 1905 (1989) (“The Rules are youthful, alive, and well. We should exchange congratulations for the great success of the last half century, and joyously usher the spirit of the Rules into the next.”). The most enterprising of lawyers understand, moreover, that we are not helpless to address the Rules’ gaps or flaws when they become apparent. See, e.g., David Wenthold & Zachary Reynolds, Comment Regarding Rule 41, No. 22-CV-J (July 24, 2022), available at https://www.uscourts.gov/rules-policies/archives/suggestions/david-wenthold-zachary-reynolds-22-cv-j [https://perma.cc/Y3EL-FRY5].
[29] See William N. Eskridge, Jr., Gadamer/Statutory Interpretation, 90 Colum. L. Rev. 609, 612–13 (1990) (explaining Hans-Georg Gadamer’s principle that “[w]hatever the method [of interpretation] that is purportedly being followed, interpretation is a search for a common understanding of truth by the text and interpreter, mediated by historical tradition”); Frank Easterbrook, Statutes’ Domains, 50 U. Chi. L. Rev 533, 552 n.2 (1983) (“Wittgenstein showed that no system of language can be self-contained and that meaning thus must depend in part on logical structure and understandings supplied by a community of readers . . . There is no ‘private language’; meaning lies in shared reactions to text.”).
[30] See Thapar & Beaton, supra note 3, at 827–28.
[31] The oath reads in full: “I, ___ ___, do solemnly swear (or affirm) that I will administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent upon me as ___ under the Constitution and laws of the United States. So help me God.” 28 U.S.C. § 453.
[32] Id. (emphasis added).
[33] From some quarters, anyway. Justice Scalia dissented with typical flair: “Long live formalism. It is what makes a government a government of laws and not of men.” Common‐Law Courts in a Civil‐Law System: The Role of United States Federal Courts in Interpreting the Constitution and Laws, in A Matter of Interpretation 25 (Amy Gutmann ed., 1997).
[34] Antonin Scalia, Originalism: The Lesser Evil, 57 U. Cin. L. Rev. 849, 863 (1989). That is not to excuse a judge’s failure to meet the mark. See Randy E. Barnett, Scalia’s Infidelity: A Critique of “Faint-Hearted” Originalism, 75 U. Cin. L. Rev. 7, 13–19 (2006) (criticizing the notion that infidelity to the original meaning of the Constitution is sometimes justified).
[35] See Benjamin Beaton, The Ginsburg Court? A Contrarian View, 121 Colum. L. Rev. 589, 608 (2021).
[36] “[T]he decider,” according to Judge Friendly, “should cerebrate rather than emote about what he is deciding . . . he should endeavor to provide a principle that can be applied not simply to the parties before him but to all having similar problems [and] he should tell what he is doing in language that can be understood rather than indulge in flights of rhetoric.” A. Raymond Randolph, Administrative Law and the Legacy of Henry J. Friendly, 74 N.Y.U. L. Rev. 1, 5 (1999) (quoting Henry J. Friendly, Benchmarks, viii (1967)).
[37] Justice Thomas grew up on a farm in rural Georgia, where his grandfather “made sure” that Thomas was “too busy to suffer” from “the evil consequences of idleness.” Clarence Thomas, My Grandfather’s Son 26 (2007) (“[I]t was our lot in life to work ‘from sun to sun.’”).
[38] In response to an observation from then-clerk, now-Judge Randolph that a particular outcome was harsh, Judge Friendly drew a sharp line between law and everything else: “‘[D]on’t tell me about harsh. You’re here to give me your legal analysis, not your feelings.’” Randolph, supra note 36, at 5.
[39] See Nomination of Amy Coney Barrett to the U.S. Supreme Court: Questions for the Record 57 (Oct. 16, 2020) https://www.judiciary.senate.gov/imo/media/doc/Barrett%20Responses%20to%20QFRs.pdf [https://perma.cc/EJG6-MAPH].
[40] Justice Harlan, according to Frederick Douglass, was a “moral hero.” Civil Rights and Judge Harlan, American Reformer, Nov. 1883. He was also a legal hero. A Kentucky native, the first Justice Harlan graduated from Centre College, a school with “an illustrious reputation.” Peter S. Canellos, The Great Dissenter 70 (2021).
[41] Plessy v. Ferguson, 163 U.S. 537, 559 (1896) (Harlan, J., dissenting) (“Our constitution . . . neither knows nor tolerates classes among citizens.”). Judge Constance Baker Motley, who helped litigate Brown v. Board of Education and went on to become our nation’s first black female federal judge, described “a ‘bible’ to which” Thurgood Marshall “must have turned during his most depressed episodes”—“the first Mr. Justice Harlan’s dissent in Plessy v. Ferguson . . . which has since become the law of the land.” Canellos, The Great Dissenter, at 494.
[42] Larry R. Matheny, Address at Centre College Commencement (May 28, 2000) (on file with the author).
[43] Id.
[44] Id.
[45] Luke 12:48.
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