A Comment on Noah Feldman on Judge Gordon Quist

A few days ago, a panel of the Ninth Circuit granted reconsideration in an important trademark infringement case about Amazon's habit, when a customer searches for a brand of product Amazon doesn't carry, of returning search results containing clearly labeled competitor products.  In July, the Ninth Circuit held, 2-1, that there was a genuine issue of fact as to whether Amazon's search results created a likelihood of confusion; on Wednesday, they granted reconsideration and held 2-1 that there was no genuine issue of fact on likelihood of confusion.  Judge Gordon Quist, a Michigan district judge sitting by designation, switched his vote but didn't write to explain why; the author of the original majority opinion, Judge Bea, became the lone dissenter, while the original dissenter, Judge Silverman, became the author of the majority opinion.  Judge Silverman's majority opinion cites no new facts or law; apparently Judge Quist was convinced by Amazon's briefing and/or Judge Silverman's excellent dissent (which persuaded me when I read the original opinion in July) that he was wrong the first time.  

As far as I can see, there's nothing remotely troubling about this.  He's probably right.*  He has no more duty to write a separate opinion explaining his changed vote than he had a duty to write a concurring opinion explaining his initial vote.  And if anything, he should be praised for the attention he evidently gave Amazon's motion for reconsideration, when such motions are routinely denied without much thought, and for his willingness to change his mind in a high-profile case for what apparently seemed to him like sound legal reasons.

Harvard Law professor Noah Feldman, however, filing his near-daily column at Bloomberg View, comments that Judge Quist's switch is an occasion to think about whether allowing district judges to sit by designation on circuit panels is a good idea, particularly when those judges are Judge Quist:

Hearing cases in Pasadena, California, where the Amazon-MTM case was argued, isn’t the worst form of work-related travel for a semiretired Michigander. Quist became a judge in 1992, and it seems churlish to deny him a little fun in the sun after almost a quarter-century in public service. But it's worth using his flip to ask whether this kind of designation is really such a good idea. Little in Quist’s judicial career or in his legal career before that, mostly in Grand Rapids, Michigan, can have prepared him for the stakes of this Amazon case. His final decision may be correct, or maybe his first one was -- but we will probably never know why he changed his mind. 

Earlier in his column, Feldman notes that Quist is (a) "a 78-year old partly retired judge," (b) "was born in 1937", which figures (2015-1937 = 78) (c) is a judge from the Western District of Michigan, and that (d) the Ninth Circuit has a very large geographical jurisdiction.  He also notes that most judges who sit by designation are senior judges.  The general idea seems to be that Judge Quist is too much a Western Michigander, too lowly a district judge from too out-of-the-way a jurisdiction, and possibly too old, for the fun in the sun of hearing high-stakes Ninth Circuit trademark cases.  (To be fair, Feldman's unclear on the point of his repeated references to Quist's age.  The point may only be that it is understandable that Quist would want to enjoy his semi-retirement on the bench in Pasadena.)

I have never met Judge Quist, though prior to today I had read one or two of his opinions and thought them rather good.  But reading Feldman's column, the suggestion that "little in Quist's judicial career or in his legal career before that . . . can have prepared him for the stakes of this Amazon case" struck me as intuitively wrong.  (I'll bracket Feldman's ambiguous concerns about Judge Quist's age, though no less than 13 judges on the Ninth Circuit, four of which still enjoy active status, are as old or older than Quist, including Judge Bea, a member of the Amazon panel.)  Even if one were to throw out Quist's 23-year career as a district judge and 30 years of private practice as insufficient experience to decide a high-stakes trademark case (one which virtually anyone who shops on the internet could have a reasonably informed opinion on), what about all the other circuit cases where Quist sat by designation?  Was Amazon his first?

When one looks into that, one finds that Judge Quist has sat by designation so often that he has more experience as an appellate judge than some circuit judges with several years experience.  (Repeated invitations to sit by designation on circuits where many district judges like to sit by designation are usually a sign, by the way, that the Chief Judges of those circuits think you know what you're doing.)  Judge Quist has written 52 circuit opinions for the Sixth, Ninth, and Eleventh Circuits, exactly half of which are binding, published precedents in those circuits.  His most-cited appellate opinion is a case about pleading securities fraud that's been cited 1,752 times; his third-most-cited appellate opinion (849 citations), relevantly, is a copyright and trademark infringement suit against New Line Cinema for pilfering a script idea for an Adam Sandler comedy that was #2 in box office its opening week.  He's written several major and complex opinions on ERISA, a field which everyone finds challenging.  He's sat on Ninth Circuit panels that have decided whether video game manufacturers' uses of college players' likenesses are protected by the First Amendment, whether school uniforms with mottos constitute compelled speech, and whether Pickering or Garcetti controls untenured state university professors' First Amendment claims.  

As a district judge, Judge Quist decided one of the many post-Hobby Lobby suits challenging the religious accommodation to the ACA's contraceptive-coverage requirement under RFRA, and has been affirmed in that case by the Sixth Circuit in one side of a circuit split that's about to generate a cert grant.  He rendered the trial-level decisions in a tax case that went to the Supreme Court.  He has issued opinions in patent infringement cases that have been affirmed by the Federal Circuit.  He decided the celebrated students' fraud action against Cooley Law School, and was affirmed there too. In the field of trademark, Judge Quist decided a suit against Taco Bell for allegedly misappropriating their famous talking TV-commercial chihuahua.  He's decided any number of brand confusion cases, including one against Countrywide Financial, and he decided a false advertising suit between the manufacturer of Ensure (the nutritional supplement beverage) and one of its biggest competitors.

Obviously, Feldman looked into none of this.  It would appear that the research he did to reach the conclusion that little in Quist's career could have prepared him to decide Amazon was limited to looking up Quist's age, year of birth, what district he sits in, and what city he practiced in before becoming a judge.  While I agree that it's worth asking whether allowing district judges to sit by designation is a good idea,** it's obvious that Judge Quist had sufficient experience to decide Amazon. 

* For what little it's worth, I agree with Judge Quist this time around.  When an Amazon customer searches for, as was the case here, an MTM Special Ops watch, they get results of similar watches made by other manufacturers.  The results prominently display who makes each watch, and not one of the watches has "Special Ops" in its name.  The Luminox Men's Black Ops Watch and the Chase-Durer Men's Special Forces Black Ionic-Plated Underwater Demolition Team Watch is as close as it comes.  If someone is choosy enough to look for an MTM Special Ops watch, I imagine they understand that a Luminox Black Ops Watch or a Chase-Durer Special Forces watch are different watches made by different manufacturers.  Of course, the case would have been easier if Amazon said something like, "We found no results for your search, but here are some similar items."  But I doubt that trademark law requires a statement of that kind, and note that such a statement assumes the customer was only looking for MTM Special Ops watches ("We found no results for your search"), rather than using the known features of e-commerce search engines to find that item and similar items.

** My take here is that, while district judges sitting by designation are frequently somewhat overmatched by the circuit judges they sit with, they bring a trial-level experience to appellate work that can be quite useful in some cases, and that the appellate experience they obtain gives them a new and extremely valuable perspective on their regular work. 

I'd also note, in fairness to Feldman, that he's hardly alone among legal elites in holding somewhat snobbish views about district judges sitting by designation.  Two years ago, Paul Clement had a memorable exchange with Justice Sotomayor about the value of district-judge-authored circuit precedent:


JUSTICE SOTOMAYOR: Let -- look, I think if we take your argument to its logical conclusion, what you are telling us is, do away with the Second Circuit's Tropiano decision, and the large progeny of cases that come from it...

MR. CLEMENT: Well, a couple of things, Justice Sotomayor. I went back to the Tropiano case because it is sort of the progenitor of this whole line of Second Circuit cases, and I noticed two things. One, I noticed it was written by a district court sitting by designation. So I mean, I -- I don't mean anything by that other than this is not Marbury. Second, I would say that the second thing I noticed is that the debt --

JUSTICE SOTOMAYOR: Oh, I think when I sat as a district court judge, I would have been insulted by that. (Laughter.) 

MR. CLEMENT: Well, it's not -- it's a good thing you're no longer sitting in that capacity, Your Honor --

JUSTICE SOTOMAYOR: Okay. It really is, for you.

MR. CLEMENT: -- because I -- I certainly mean you no offense. You could write Marbury here.

Nothing Plus Nothing Is Nothing: How the D.C. Circuit Got Bivens Wrong Yesterday

The D.C. Circuit decided Meshal v. Higginbotham yesterday, and held 2-1 that where an American citizen is detained abroad* in a terrorism-related law enforcement investigation by FBI agents, he can't sue under Bivens for violations of the Fourth Amendment - even though the Bivens cause of action was originally recognized in the Fourth Amendment law enforcement context.  As the majority explains their holding, the presumption against extraterritoriality, and the subject matter of the investigation, make this kind of Fourth Amendment claim a "new context" for Bivens, where "special factors counsel hesitation" in creating a Bivens remedy.

* The facts as alleged in Meshal's complaint are very troubling.  After Meshal, a New Jersey resident, took a vacation to Somalia, he was secretly detained for four months of interrogation, threats of torture, disappearance and death, lost eighty pounds, and finally was released by the FBI and allowed to return to the United States, not having been charged of any crime.

I find this all very perplexing.  First, the presumption against extraterritoriality.  The presumption against extraterritoriality is a rule of statutory interpretation, which counsels that where the geographic scope of a statutory regulation of conduct is ambiguous, it is presumed to apply only in the United States.  This is so because (a) Congress is presumed to "ordinarily legislate[] with respect to domestic, not foreign, matters," and (b) because the presumption "serves to protect against unintended clashes between our laws and those of other nations which could result in international discord."  So, for example, the Court has interpreted our securities fraud laws to not regulate misstatements made by Australian issuers of stock traded on the Australian stock markets.

Where it comes to the Constitution, however, it's black-letter law that it protects American citizens from extraterritorial state action - as the majority in today's decision concedes (see n.4). So the question here is whether, even though the Constitution forbids federal officials from unreasonably detaining American citizens on foreign and American soil alike, the presumption against extraterritoriality counsels against extension of the Bivens remedy to Fourth Amendment violations that occur abroad.  It's hard to see why it would. 

In the first place, the presumption is half-animated by a presumption of congressional disinterest in foreign matters that has nothing to do with the judicially created Bivens remedy.  It's incoherent for a court to talk about an interpretive presumption in the context of a remedy the court itself is creating.  Even by strained analogy, though, a presumption of disinterest in foreign matters is defeated by the Constitution's extraterritorial application.  That is, the Constitution is legislation with respect to how American officials conduct themselves abroad.  Does a case exist where a statute incontestably regulates domestic and foreign conduct but the presumption against extraterritoriality is used to bar the statute's remedies from applying to foreign violations?  I'm not aware of one.  In the second place, the application of the Fourth Amendment to FBI agents' conduct abroad doesn't risk an untintended clash between our law and that of other nations - unless we're worried about the Fourth Amendment displacing Kenyan law's regulation of FBI agents' detention of American citizens while in Kenya.  

Consider the following hypothetical, which should illustrate why extraterritoriality isn't a problem here. The Court held in Davis v. Passman that an administrative assistant who suffered gender discrimination at the hands of a Congressman, and who had no statutory cause of action because employment-discrimination law did not, at the time, protect congressional employees, could sue for a violation of the Due Process Clause of the Fifth Amendment under Bivens.  Suppose that the Congressman in Passman, while traveling abroad on an official tour, had hired an American citizen as an interpreter, but terminated her due to her gender.  Does the case come out differently?

The other part of the D.C. Circuit's holding is the terrorism-related subject matter of the defendant FBI agents' investigation.  As far as I can understand the majority's rather thin reasoning, terrorism implicates national security, and courts are "reticent" in cases involving national security, so Bivens shouldn't be extended, at least extraterritorially, to Fourth Amendment claims involving terrorism investigations.  This is puzzling.  For one thing, the Court has already applied Bivens to two terrorism-related actions - Ashcroft v. al-Kidd, and Ashcroft v. Iqbal - plus an action against Secret Servicemen assigned to protect the President, which raised national security concerns that the Court discussed in its opinion.

Today's opinion says (see n.11) that those cases just assumed Bivens's applicability, and that's right in the case of the latter two, which expressly assumed without deciding that Bivens applied.  However, what those cases assumed without deciding was that Bivens applied to First Amendment claims, an issue which the Court flagged sua sponte.  The Court didn't say it was assuming without deciding that there wasn't a national-security exception to Bivens, or flag national security as an area where Bivens's application was doubtful.  And in al-Kidd, there's no language about assuming without deciding that Bivens applied; the Fourth Amendment claims there, to which Bivens has applied since Bivens itself, just failed on the merits.  It's true that in al-Kidd the Court didn't "explicitly consider whether to imply a Bivens cause of action," but that's because the Court didn't need to consider whether to imply a cause of action for Fourth Amendment violations that Bivens itself implied.


Second, how is the subject matter of a criminal investigation a reason to deny a cause of action for Fourth Amendment violations?  Suppose that state police were involved in a domestic terrorism investigation and wrongfully detained someone; a 1983 action would lie, without even some special national-security immunity doctrine to protect the policemen.  Any state secrets pertaining to that action would be privileged, and only if the action as a whole required judicial intrusion into state secrets would the action be dismissed.  We even allow aliens who have been detained on foreign soil and designated as enemy combatants to seek habeas relief from their detention, which is going quite a bit farther than allowing a released citizen who's currently suspected of nothing to sue over a past detention.   

Bivens, of course, is neither 1983 nor habeas; it's neither a statutory cause of action nor an ancient common-law cause of action, but rather, a judicially created cause of action that courts extend to new contexts with some caution.  Nevertheless, the existence of any number of causes of action that trench on terror-related matters suggests that there's no need for a categorical bar to Bivens actions for Fourth Amendment violations in terrorism investigations.  After all, what would such a bar protect?  The state secrets privilege can protect sensitive information, and between qualified immunity, indemnification, and the extreme rarity of Bivens actions for a terrorism-related detention winning a Bivens action for a terrorism-related detention and the extreme difficulty of winning them, it's hard to imagine that the availability of a Bivens action would chill terrorism investigations.

More broadly, Meshal raises an important question on when courts should view a Bivens action as a request to extend Bivens to a "new context," which triggers a multi-factor inquiry into whether to extend Bivens.  As the majority acknowledges, the Court has described two kinds of Bivens actions as "new contexts" - those where someone is suing under a provision of the Constitution for which the Court hasn't previously implied a Bivens action, and those where someone is suing a kind of defendant against whom the Court hasn't previously implied a Bivens action.  This case is neither of those - the Court has, in Bivens itself, allowed Bivens actions under the Fourth Amendment, and has, in Bivens itself, allowed Bivens actions against federal law-enforcement agents.  The majority says, nevertheless, that Meshal presents a new context - extraterritorial terrorism investigations - which allows the panel to decline to "extend" Bivens to the new context.

I don't think I have a problem with declining to extend Bivens to unusual fact patterns - not just new classes of defendants or new provisions of the Constitution.  After all, statutory causes of action can have all sorts of subject-matter-related exceptions.  But if we're going to go down the road of carving out claims from Bivens on the basis of their facts, I think we would want more fine-grained screens than "any foreign terrorism investigation."  Some aspects of terrorism investigations might be too sensitive to probe in Bivens actions; others may not.  What if the FBI unconstitutionally detains a bank employee to ask him questions about terrorist money handled at his bank, or a landlady to question her on whether she rented an apartment to a low-level terrorism suspect?  What if the FBI unlawfully executes a search of a suspect's childhood home?  What danger does judicial scrutiny pose in cases like these?

Finally, a few comments on or really just quotes from Judge Kavanaugh's concurring opinion, which reads at times like an introductory monologue to an episode of 24.  His main point is that we are in a never-ending war with terrorists, and even law-enforcement investigations into terrorist activities are a part of this "integrated war effort":

The United States is at war against al Qaeda and other radical Islamic terrorist organizations. Shortly after al Qaeda's attacks on the United States on September 11, 2001, Congress authorized this war. President Bush and President Obama have aggressively commanded the U.S. war effort.

 

The terrorists' stated goals are, among other things, to destroy the State of Israel, to drive the United States from its posts in the Middle East, to replace more moderate Islamic leadership in nations such as Saudi Arabia, and to usher in radical Islamic control throughout the Greater Middle East. In pursuing their objectives, the terrorists have repeatedly attacked U.S. persons and property, both in foreign countries and in the U.S homeland.

 

The war continues. No end is in sight.

In waging this war, the United States has wielded a wide array of federal assets, including the military, the CIA, the FBI, and other U.S. intelligence and law enforcement agencies. The traditional walls dividing military, intelligence, and law enforcement operations have given way to a more integrated war effort. As President Bush and President Obama have explained, the United States employs military, intelligence, and law enforcement personnel in an often unified effort to detect, surveil, capture, kill, detain, interrogate, and prosecute the enemy.

Maybe I just don't read enough about terror, but this is new to me.  The majority opinion, which Judge Kavanaugh joined, says Meshal was the subject of a criminal investigation, not an FBI-assisted man hunt.  (He was even given Miranda-like waiver forms when his detention started.)  If criminal investigations into terrorist activities are part of an "integrated war effort" to, among other things, "prosecute the enemy," are federal prosecutors part of the war too?  Do judges who preside over terrorism trials preside over a phase in a war?  What does this make accused terrorists' defense lawyers?  This all reaches an imaginative fever pitch when Judge Kavanaugh explains that while Meshal was never designated as an enemy combatant, the four months of detention, coercive interrogations, and threats of torture he suffered were "an investigation to determine whether Meshal was an enemy combatant."  (Hopeful) prediction: en banc.

Why it Probably Doesn't Matter if Originalism can Produce Brown - a Comment on Dorf on Originalism

Today on his blog, Michael Dorf argues that, when faced with the objection that originalism can't produce Brown v. Board of Education, it's not enough for originalists to argue that originalism contemplates stare decisis and therefore counsels in favor of adhering to Brown, whatever its originalist merits as an original matter were.  Instead, if Brown is sacrosanct, "that means that any interpretive approach that is acceptable must actually produce Brown and/or the other precedents. Preserving sacrosanct precedents is not enough." 

My onetime professor Lawrence Solum spots several ambiguities in this formulation, and points out that non-originalist theories - common-law constitutionalism, pluralism - don't necessarily produce Brown, but only are amenable to Brown.  I will assume for purposes of this post that Dorf means that, if the Court accurately applied originalism in 1954 to the facts in Brown, it must be the case that there's a significant possibility that the Court would have reached the result it actually reached - as I agree that Dorf probably can't be demanding a theory that would invariably generate the result in Brown, and because it appears to me that his argument is that originalism, done right, never produces the result in Brown as an original matter.

Assuming that's what Dorf means (if I'm wrong, it's nevertheless something worth responding to, as it's a reasonable-enough claim that others have made), I see two problems.  First, just why is it that originalism must be capable of generating Brown as an original matter, rather than as a matter of stare decisis were the Court to adopt originalism in 2015?  Second, even if we do grade originalism on how it would perform in 1954, why is it even that important that originalism be capable of generating sacrosanct precedents at all?

On the first question, I take it that when originalists call for the courts to adopt originalism, they propose a reform in interpretive methodologies going forward (unless they believe the courts have already adopted originalism) - not an alteration of past interpretive methodology by means of time machine.  So since Brown is the law, and since most originalists believe in stare decisis (in part because stare decisis existed in 1787 and was part of the package of original understandings of how Article III courts would behave), originalists who call for originalism going forward call for adherence to Brown, a decision that doesn't demand to be overruled under any form of stare decisis.  Why does it matter, then, that, if originalism had existed in 1954 and originalists had controlled the Court in 1954, we couldn't (maybe) have gotten Brown?  Dorf says it's because past performance is a predictor of the quality of future results:

Consider an analogy. Suppose I'm trying to decide which of two builders to hire to build a house: Stubbs or O'Reilly. Each of them shows me several houses he has previously built. The Stubbs houses are high quality but the O'Reilly houses are falling down. O'Reilly nonetheless wants me to hire him. I'm skeptical because I see what lousy work he has done in the past. He tells me not to worry because he himself lives in a high-quality house that Stubbs built. O'Reilly is proud of the fact that he hasn't destroyed the excellent house Stubbs built. But I'd be a fool to hire O'Reilly because the capacity not to destroy an excellent house is not a predictor of the ability to build an excellent house.
Originalism supplemented by stare decisis is like O'Reilly.

This analogy doesn't really work.  Originalism isn't just capable of not destroying excellent houses; it can build some excellent houses of its own.  No non-originalist would claim that the entire original meaning of the Constitution in every particular is unworthy of adherence.  Even liberal anti-originalist pundits like Ian Millhiser are discovering that they like what original meaning has to say about birthright citizenship; any number of thoughtful liberal non-originalists like what they believe original meaning has to say about affirmative action (see pages 81-85).  And people of all ideologies find a lot to like about the Bill of Rights or divided government, even as originally understood.  

So what we need is to ask whether a past inability to generate one excellent decision is a predictor of an inability to generate certain other (or enough) excellent decisions going forward, though we know originalism is sometimes capable of generating excellent decisions.  What we might find if we asked that question is that, while originalism was not equal to the challenges posed by Jim Crow, or possibly the Great Depression, originalism can produce excellent and even sacrosanct decisions that dispose of the outstanding constitutional questions that arise today.  This, of course, is highly contingent on the mix of questions that arise, what originalism has to say about them, and what one's idea of a sacrosanct decision is in the first place.  I would expect, for example, that if someone like Trump were to get elected President, a non-originalist Court would give his arguments against birthright citizenship a much more sympathetic hearing than an originalist Court would, given the strength of the originalist arguments for birthright citizenship and the tendency of this non-originalist Court to take most any constitutional claim seriously so long as it's backed by one major political party and a large share of the public.  Whether a decision upholding birthright citizenship would be sacrosanct would be in the eye of the commentator, but I imagine the bulk of the people who decide whether decisions are canonical or not would quickly canonize such a decision.

On the second question, suppose that for some reason we did care what originalism would have done in 1954, not just what it would do in 2015.  Is it really a devastating objection to originalism that originalism would have failed to produce Brown?  I don't see why.  The argument that it is seems to go something like this: (1) Segregation was a horrible evil. (2)  Brown (in theory) ended segregation. (3) Therefore, Brown is a great and sacrosanct decision. (4) We would want any interpretive theory to be able to produce Brown.  

My trouble with this argument is steps three and four.  It's obviously the case that Brown was an immensely welfare-enhancing and virtuous decision, because it helped end a horrible evil.  But is any immensely welfare-enhancing and virtuous decision sacrosanct, and must a good interpretive methodology be capable of generating certain decisions that generate immensely welfare-enhancing social change?  What's wrong with acknowledging that the Constitution just doesn't say certain things we'd like it to say?  

For example, slavery was an even greater evil than segregation.  The Constitution, however, permitted slavery until it was amended to forbid it.  In a counterfactual world where the Thirteenth Amendment was never ratified, we could imagine a non-originalist decision that read the Constitution to ban slavery.  Would we say that originalism was defective because it couldn't produce such a decision?  I think not.  It doesn't follow from the immense virtue of some social/legal change that the Constitution must be capable, in its current unamended state, of generating that change by means of judicial review.  It only follows that it is morally imperative that the change occur by some means, which certainly need not be judicial.  Further, I would think that this moral imperative runs most directly to political branches that can change the law, rather than to courts interpreting the old law they're stuck with, which may well be flawed from a moral perspective.  That is, there was obviously a moral imperative in 1954 to pass laws ending segregation, or to amend the Constitution to do so, which comes to the same thing.  But was there really a moral imperative, failing those developments, to read a constitutional provision enacted in 1866 to ban segregation?  Perhaps if segregation was so popular that Brown was the only way to end it, but I doubt that's the case; rather, to crudely simplify things, Brown only was enforced once segregation became unpopular enough for political actors to enforce Brown.

Take another example.  It may be quite unjust that poor children are penalized for the poverty of their parents and neighbors and go to public schools that receive less funding than those attended by children fortunate enough to be wealthy.  It would be nice if the Constitution had something to say about this.  But is it a black mark against originalism, or the non-originalist methodologies actually used by the Court that rejected poor children's constitutional claims in 1973, that they respectively cannot and failed to generate a decision that rectifies that injustice?  No more so, I suppose, than it's a black mark against our state constitutions that they produce state legislatures which invariably vote to maintain the same unjust system of property taxation and school funding - a fact which leads very few people to say that our state constitutions embody a morally infirm system of government which must be replaced by some other system of government.

For whatever it's worth, I am not an originalist and thus happily embrace Brown as an original matter; I have no idea what I would say about Brown were I an originalist.  And I do think it's a selling point of certain non-originalist methodologies that they're more amenable to Brown and other canonical decisions than originalism is.  But unless one believes that the Constitution just is an unerring fount of moral goodness, which seems doubtful, or that even if it isn't, an interpretive methodology must make it so, which also seems doubtful, I don't see why an interpretive methodology must be capable of generating every profoundly morally good decision in the constitutional canon.

The Government Jumps off a Cliff in Lockhart v. U.S., and Why All Textualism is (Constructive) Intentionalism

Lockhart v. United States, set for argument on November 3, is a case about two dueling canons - the ancient rule of the last antecedent, and the newly discovered "series-qualifier" rule, which made its first appearance by name in Justice Scalia's 2012 book, Reading Law.  A recidivist sentencing provision in a federal child pornography statute provides that, if an offender has been convicted of one of a number of federal sex crimes, or "under the laws of any State relating to aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor or ward, or the production, possession, receipt, mailing, sale, distribution, shipment, or transportation of child pornography, or sex trafficking of children," he is subject to a ten-year mandatory minimum.  

The defendant in Lockhart argues that "involving a minor or ward" modifies the entire series of generic offenses that precede that phrase.  The government argues it only modifies the last antecedent - "abusive sexual conduct."  (Antecedent is a misnomer here, strictly speaking; a noun is not an "antecedent" of an adjective that modifies it.)  Five circuits, including the Second Circuit below in an opinion written by Judge Katzmann, agree with the government; the Eighth Circuit, in a couple of opinions, has assumed Lockhart's interpretation, although never in an outcome-determinative way.  A cert grant on a defendant's petition from such a weak circuit split strongly suggests, I think, some doubt about the government's position, which the government's briefing in Lockhart, I'm afraid, likely has unnecessarily compounded.

Currently, the state of the art on statutory interpretation of lists followed by a modifier - A, B, and C that XYZ - is more of a muddle than ever before, in a good way.  Grammatically, "A B and C that XYZ" is ambiguous as to whether XYZ modifies A, B and C or just C.  However, until fairly recently, courts usually resolved such ambiguities with the rule of the last antecedent, which links the modifying XYZ to only the last potentially modified word/phrase, C.  The rule of the last antecedent is not a rule of grammar - again, sentences of this kind are grammatically ambiguous - but it does turn out to be a decent guess about usage, as research shows that English speakers have a tendency towards "low attachment" -- i.e. reading modifiers, in cases of ambiguity, to modify (in linguistics-speak, attach to) less rather than more.  That said, it's only a good guess some of the time, as the very able federal public defenders who represent Lockhart explain in their brief.  To give a couple of their examples, a sign at a park that permits swimming, boating, or fishing before sunset only doesn't permit swimming and boating all day; a menu offering a special of a cheeseburger, hamburger, or turkey burger with fries probably doesn't mean that only the turkey burger comes with the fries.

Though the last antecedent rule is a woefully coarse estimate of drafters' intent, congressional understanding, or public expectations, courts could have left well enough alone and hoped that Congress would legislate against it, as a misguided but predictable background rule.  Background-rule defenses of canons, however, assume that Congress knows about them and cares enough to draft against them, which recent empirical research calls into question.  So in his recent book, Justice Scalia pioneered a counter-canon to the last antecedent rule, the series-qualifier rule, which essentially says that where a modifier seems just as applicable to the first words in a series as to the last, it modifies the whole series.  Justice Scalia didn't invent the series-qualifier rule, though he gave it its name; the rule makes an appearance in a 1920 Justice Brandeis opinion (see page 348), and in at least one later opinion of the Court.  But it was largely forgotten until it resurfaced in Reading Law, at which point it came to play an important role in a circuit split over restitution to child pornography victims, and in the Court's ultimate resolution of that split a year ago in Paroline.  We are now, then, in a spot where courts, under the guise of applying two canons, really simply ask what Congress likely or apparently intended, with a thumb on the scale in favor of low attachment. This seems exactly right, although it can leave courts groping for answers.

The lesson observers should be drawing from the collapse of the rule of the last antecedent (in the series-and-modifier context) is that canons, to say the least, aren't gospel.  But predictably, what we instead see happening in Lockhart is courts and practitioners attempting to arbitrate a dispute between two countercanons with more canons.  Specifically, the government and multiple circuits have reasoned that in the child pornography sentencing provision, the rule of the last antecedent must prevail because the series-qualifier rule would generate an interpretation that falls afoul of the most powerful linguistic canon of all, the rule against surplusage.*  Unfortunately for the government, Lockhart, in a stunning bit of jujitsu, conceded partial surplusage, leading the government to bite on his concession and attack it in such a way as to propose a surplus construction of their own that's completely absurd.

* Anti-surplusage maintains its power despite recent empirical research showing that legislative drafters are well aware of the rule and don't buy into it.

How does the surplusage argument work in Lockhart?  There's a good surplusage argument for the government and a suicidal one.  The good argument, made by the Sixth Circuit in an unusual 14-1 per curiam en banc, goes like this.  The series in Lockhart is "aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor or ward."  Aggravated sexual abuse is clearly a subset of sexual abuse; suppose, then, that sexual abuse is a subset of "abusive sexual conduct" (though this is not at all clear).  If "involving a minor or ward" modifies "aggravated sexual abuse" and "sexual abuse," not just "abusive sexual conduct," those phrases becomes pointless, because the inclusion of abusive sexual conduct involving a minor or ward necessarily includes sexual abuse/aggravated sexual abuse involving a minor or ward.

That's an okay argument if you buy its premises, although even the government has to concede that "aggravated sexual abuse" is surplusage on its reading; the statute includes all sexual abuse, they say, so it necessarily includes all aggravated sexual abuse.  The government's explanation of that bit of surplusage is rather weak - they say it serves the "important purpose" of clarifying that the enhancement applied to "particularly serious types of 'sexual abuse' offenses," not just to . . . all sexual abuse offenses - and once they give away surplusage as to the first item on the list, it opens the door to the possibility that the entire list is a surplusage stack: A which is a subset of B, B which is a subset of C, and C.  Nevertheless, it's not a terrible argument.  One could very plausibly read the statute to say that abuse and aggravated abuse as to all victims enhances sentences, while a less serious kind of offense - "abusive sexual conduct" - only enhances sentences if children are victims.  That is, so long as one saw a way to distinguish sexual abuse from abusive sexual conduct, which isn't easy.

Unfortunately, that's not the argument the government makes, because of a (ingenuous?) concession Lockhart made.  Lockhart acknowledged in his opening brief that sexual abuse and abusive sexual conduct are just about the same thing, and argued that it therefore makes sense for "involving a minor or ward" to modify both. (This submission has particular force because the phrase "relating to" precedes the series and blurs whatever fine boundaries there may be between sexual abuse and abusive sexual conduct.)  On Lockhart's view, then, abusive sexual conduct involving a minor or ward doesn't add anything beyond what sexual abuse involving a minor or ward adds.  The government, transfixed by that concession of surplusage, accepts Lockhart's concession that sexual abuse and abusive sexual conduct mean the same thing, says he's right, and then argues that given the equivalence, Lockhart's interpretation creates impermissible surplusage.  As Lockhart reads the statute, the government says, the statute means: "synonym A involving a minor or ward, or synonym B involving a minor or ward," where synonym A and B are synonymous.  What's the point of including synonym A?  But as the government reads the statute, it means "synonym A, or synonym B involving a minor or ward."  Now there's a point to synonym A!  It serves to show that only synonym B requires the involvement of a minor or ward.

Of course, as Lockhart argues in his reply brief, this is a comically self-defeating argument.  If the government accepts that "sexual abuse" and "abusive sexual conduct" are synonyms, and argues that "involving a minor or ward" modifies only the latter, they've painted themselves into a corner where involving a minor or ward is meaningless because the government can always get an enhancement through the unmodified synonym.  And while it's possible enough for a skeptic of the rule against surplusage (like me) to read the series as a stack of subsets, where abusive sexual conduct carries the weight of the whole provision, no one could read the minor/ward limitation to effectively limit nothing because the phrase it modifies is overridden by an unmodified synonym of that phrase.  The government could only have avoided this conundrum by rejecting Lockhart's concession and arguing that sexual abuse is a subset of abusive sexual conduct, in which case "involving a minor or ward" would limit a set of offenses not completely captured by the other items in the series.

The government weakly anticipated this objection, arguing that adding "abusive sexual conduct involving a minor or ward" clarified that statutory rape offenses were priors for the sentencing enhancement - I suppose on the theory that statutory rape isn't clearly "sexual abuse," but is clearly "abusive sexual conduct involving a minor or ward."  This argument only underscores that the government never should have conceded that "abusive sexual conduct" and "sexual abuse" mean the same thing, as it only works if they at least possibly don't.  In any case, the argument doesn't help, because it only begs the question of why Congress bothered to write "involving a minor or ward" or "sexual abuse."  Had Congress just written abusive sexual conduct with no modifier, it would be just as clear that statutory rape was covered; adding "involving a minor or ward" doesn't make it clearer, as statutory rape still has to be abusive sexual conduct in the first place, which it obviously is.
 
I don't know if the government can dig out of this hole at oral argument, or if a majority of the Court may find that the government's bottom line has enough appeal that they will ignore the government's concession and read abusive sexual conduct to do some work that sexual abuse doesn't.  I suspect the government is up a creek, and not just for the reasons rehearsed above.  (Note, for example, that every one of the state-offense enhancers following the series in question involves children.)  However easy a case Lockhart may ultimately be, there are two important lessons we can draw from Lockhart. 

The first is that the Court and the practitioners that know it best have become far too obsessed with surplusage as a universal solvent of ambiguity.  Lockhart is a case where everyone knows the snippet of text in question is partially redundant; aggravated sexual abuse adds absolutely nothing that sexual abuse doesn't cover.  But even though the first item in the series here is indisputably redundant on the second, when Lockhart had the temerity to argue that the second item was in turn redundant on the third and vice versa, the government could not help but pounce on this concession and paint it as an argument for impermissible surplusage, even though in doing so they blew up their own argument.  (Likewise, the circuits that made a better surplusage argument were willing to accept that the first term in the series was superfluous, but not the second.)  

This isn't surprising; incredulity at pretty conceivable instances of intentional superfluity has been a commonplace in the Court's recent opinions.*  This was inevitably going to trickle down into repeat players' briefs, creating a surplusage-obsessed feedback loop.  But it's rather misguided.  To the extent what we're doing, when we interpret statutes, is trying to discern the intentions of Congress, or the understandings of a hypothetical Congressman who voted on a bill, the evidence is that Congress doesn't mind minor redundancies.  To the extent courts seek to ascertain public expectations of how courts would construe statutes - a somewhat circular but appealing theory, in my view - what evidence is there that the public believes Congress drafts with perfect parsimony?

*  A personal favorite - the Bankruptcy Code exempts "retirement funds to the extent those funds are in a fund of account that is exempt from taxation under [certain sections of the Internal Revenue Code]."  An IRA is exempt under one of the listed sections.  So an inherited IRA might seem to be exempt in bankruptcy.  The Court, however, unanimously held last year that an inherited IRA is not exempt because it's not a "retirement fund"; the person who inherits it may, but doesn't have to, keep the money for retirement.  Responding to an argument that every account exempted by the listed sections of the Internal Revenue Code is a retirement fund, the Court said that couldn't be because it would make the retirement-funds "element" of the bankruptcy exemption superfluous.  Of course, people often say "A, modified by B," where B could only sensibly modify A.  If I were to speak of "charitable contributions exempt from taxation under [the sections of the Internal Revenue Code that specifically and only exempt charitable contributions]," have I referred superfluously to charitable contributions?  Isn't "charitable contributions," at least, grammatically non-superfluous because one needs a noun for "exempt from taxation . . ." to modify?  Should an interpreter of my remark attempt to save it from surplusage by proposing some restrictive meaning of charitable contributions?

The second lesson here (which will come as a mere reminder to many) is that textualism is a thoroughgoingly intentionalist enterprise, or at least, a constructively intentionalist enterprise.  Recall that Lockhart is made possible by the textualist Justice par excellence pioneering a counter-canon to the rule of the last antecedent, on which one rejects the rule of the last antecedent where a modifier seems like it ought to modify everything.  This is a concession that neither grammar nor faux-grammatical maxims are up to the task of deciding what modifiers modify, and that what courts should do with modifiers is attempt to decide what they were intended (or look like they were intended) to modify.  

In arbitrating the seemingly hypertextualist dispute that then remains between two canons, which are really two self-canceling rules that jointly point to intent, the parties in Lockhart and the courts below turn to an array of intentionalist arguments.  One of these is surplusage itself, which is really just an empirical claim that Congress doesn't write superfluous words and thus must intend meanings that don't make its words superfluous. 

Another type of argument both parties and the courts below make is intentionalist inferences from context. Lockhart points out that all the other state-offense enhancers in the statute involve children, so Congress must have only wanted state-offense enhancers that involve children, perhaps because it wasn't too sure what sexual abuse offenses involving adults look like in the states.  The government and the Second Circuit counter that the federal-offense enhancers in the statute include sexual abuse of adults and that it would be odd if Congress enacted an enhancement for federal sexual abuse of anyone but only state sexual abuse of children.  Instead, what Congress must have been thinking when it wrote "involving a minor or ward" was making sure they'd cover statutory rape, or some  sub-sexual-abuse crime that victimizes children.  There's more, but the common thread is that in each argument, the parties take some part of the statute and argue that because of it, Congress probably intended the modifier to modify/not modify the whole series.  None of these arguments depend on legislative history, and all of them are in play for the most dyed-in-the-wool textualist.  Nevertheless, they're all claims about intent - not the semantic meaning of what Congress said, which is utterly unaffected by surplusage or the other enhancing offenses in the statute, and which is irreducibly ambiguous.

Now, a textualist would say that he's interested in all these arguments not because he's interested in Congress's intentions, which he either may deny exist or deny are law.  Rather, he will say, he's interested in these arguments because he's interested in what it seems like Congress intended - its "objective intent," as John Manning would say.  After all, if we only cared about semantics, the law would be radically underdetermined, as statutes can have multiple semantic meanings which inferences from context can clear up.  It's a bit of a mystery to me why textualists think the way to disambiguate semantically ambiguous statutes is making inferences about objective intent that neglect evidence of subjective intent (i.e., legislative history).  One possible reason, although I haven't seen textualists argue it, is that because the public inevitably attempts to figure out what Congress "meant" when they read statutes, courts must give them what it looks like Congress meant so as to give them law that fairly tracks public expectations.  But whatever the reasons textualists have for reasoning just like intentionalists, the space between textualists and intentionalists (besides textualists' refusal to look at legislative history) has been vastly overstated.

Why it Doesn't Matter if the Court's Opinions Are Originalist - A Comment on Baude on Originalism

In very recent years, justifications for originalism have taken a positive turn.  Justifications for originalism used to be largely conceptual - claims that interpreting law just is giving that law its original meaning, or in some shrinking quarters, following its authors' original intentions - or normative - claims that originalism is good because only it can constrain judges or give judicial review some democratic purchase, or that originalism's good because it will generate more public-welfare-promoting outcomes than other theories of constitutional interpretation.  

Recently, though, some originalists have decided to sidestep the debates, which seem to have come to a standstill, over whether these conceptual and normative claims are right, and mount a positivist defense of originalism.  This defense, which relies on the philosophy of law known as legal positivism, argues that courts, particularly the Supreme Court, decide constitutional cases in an originalist way, that it thus follows that originalism is our law, whatever might be said for or against it, and that, since originalism is our law, courts have a duty to decide cases in an originalist fashion unless they can give pretty good reasons for deviating from our originalist law.  This kind of argument was first (notably) advanced in an article this year by Stephen Sachs, who argued that if it were the case that current interpretive practices are originalist, courts should keep being originalist, and has now been advanced in a forthcoming Columbia Law Review article by Will Baude, who claims that the Supreme Court's interpretive practices are originalist and that courts, the Supreme Court included, should therefore keep being originalist absent some pretty good reasons for legal change.

When I read Professor Sachs's article some months ago, I was rather skeptical that this positive turn would bear any fruit, because I didn't believe the Court's interpretive practices could be plausibly described as originalist.  It seemed to me then, and seems to me now, that at best, the Court only says it's bound by the Constitution's original meaning; in practice, it regularly and predictably deviates from it, and, even when it happens to adhere to it, often does so for non-originalist reasons.  If that's right, positivist arguments for originalism take the following unappealing form: "Because you, the Supreme Court, say you're doing originalism, even though in reality you regularly reject it and are rarely guided by it, you have obligated yourselves to really do originalism."

That, however, was only my initial reaction to an article that argued that if the Court's interpretive practices were originalist (which I doubted), then courts should do originalism.  Now, Professor Baude has argued at some length that the Court's interpretive practices are originalist.  I am unpersuaded.  And even if I were persuaded, I think that Baude's article accidentally clarifies why it doesn't matter if originalism is, at the present time, our law.

A. Is the Court Really Doing Originalism?

Baude's argument that the Court's interpretive practices are originalist has three parts.  First, the Court has recently produced a number of avowedly originalist opinions, like Noel Canning, Heller, and Crawford.  Most notably, in Noel Canning, the Court suggested that the Recess Appointment Clause had to be at least ambiguous, as an originalist matter, for a longstanding practice to prevail, and that clear constitutional text, understood by reference to original meaning, would trump long-settled practice.  Second, opinions that are sometimes described as explicitly nonoriginalist - Blaisdell, Brown, Miranda, Lawrence, Obergefell - are in fact either explicitly originalist or at worst noncommittal; there are no canonical rejections of originalism.  (Fairly explicitly nonoriginalist cases in the field of election law, including Reynolds v. Sims, are shoved aside in a footnote as "not exactly part of the modern constitutional canon," which is a little odd given Reynolds's immense and continuing salience.)  Third, cases like Roe and Reed v. Reed, the results of which nonoriginalists argue are so inconsistent with originalism as to show that originalism is not the law, turn out to be merely instances where the Court claimed to be doing originalism and got it wrong in the application, or may in fact be correct as a matter of originalism.

All this could be right - though I have my doubts on one or two points* - and yet tell us very little about whether originalism is our law.  To know whether it was, or wasn't, I would first want to know whether our constitutional law is in fact consistent with the Constitution's original meaning (plus whatever deviations from it originalism allows).  If it were inconsistent with the Constitution's original meaning in large part, one would want to know whether the inconsistency was largely attributable to good-faith failures to correctly identify the Constitution's original meaning, or to choices, expressed in opinions or not, to interpret the Constitution by some non-originalist means.  I think that, whatever may be said about the Court's opinions, they haven't produced originalist results very often, and that their failure to produce originalist results isn't accidental.

* As is typical in discussions of originalism and the Supreme Court, Baude's focus is entirely on liberal (broadly speaking) putative deviations from originalism.  It may be that cases like Shelby County, Croson, or Adarand are harder to square with originalism.  None is avowedly anti-originalist, but each is remarkably free of originalist reasoning or even textual analysis, and each makes claims about constitutional meaning that are widely thought to be inconsistent with originalism.

1. A Hypothetical

Baude anticipates this objection, attributing it to Eric Posner and Richard Primus, and, under the heading of "Judicial Insincerity" (see note at the end of this subsection*) has just a couple pages in response to it.  His first response is a hypothetical intended to show that, even if the Court is really deciding cases by non-originalist means, so long as it claims to be deciding cases with originalism it's those originalist claims, and not its real rules of decision, that make up our law:

Consider this scenario: Suppose we lived in a world whose judicial system looked, to most legal observers, exactly like ours: Judges issued opinions based on the Constitution, the U.S. Code, the common law, and various precedents interpreting them. But suppose a few canny professors figured out that the judges were all secretly part of an Illuminati conspiracy ruling entirely for the benefit of their secret overlords and just pretending they were following the Constitution and these other sources. Would we say that actually the Illuminati instructions are the law because they describe the secret practice of the judges? Or would we say that the judges were part of a widespread conspiracy to subvert the law? I would say the latter, and I think many others would as well.

My first reaction is that Baude's reaction to his hypothetical is the reaction of someone who doesn't take positivism very seriously, which is a problem as his argument purports to rely on positivism.  The many ambiguities of the hypothetical don't help: do the judges make decisions that are merely calculated to "benefit . . . their secret overlords," or do they decide cases on the basis of specific "Illuminati instructions" from those overlords; how long has this been going on; do the professors publicize their research; do practitioners make Illuminati-regarding arguments in court in recognition of the Illuminati's control, etc.  If one assumes, though, that the hypothetical Illuminati takeover is not a very recent development, but has been going on for decades, and that the secret overlords give the judges specific instructions, I think most positivists would say that the law of such a state just is the overlords' fiats, not the law of the state's pre-Illuminati past or the law adverted to in the judges' opinions.  At the very least, positivists would say that the law of such a state is what its courts say it is in its corrupted decisions, not what the law would be if the courts seriously employed the interpretive methodologies they claim to be using.  

Similarly, legal positivists will generally maintain that the law of Stalinist Russia as it pertained to Stalinist criminal justice was not the disregarded Soviet Constitution of 1936, which guaranteed independent judges and a right to counsel, along with freedom of speech and freedom of the press, but rather (in part) the secret instructions given by Stalin to the pseudo-independent judges who presided over his show trials, though those judges claimed to be applying the Soviet Constitution.  Few would claim that the Stalinist judges (or Stalin) were "subverting" the USSR's real law, embodied in the Soviet Constitution - even though, depending on whose historiography you read, the Soviet Constitution may have been taken fairly seriously in the pre-Stalinist period.  Reactions to the contrary would appear to be founded on some quasi-moral criterion for recognizing a state's law, like a requirement that law be publicly promulgated, which has a very respectable anti-positivist pedigree, but doesn't easily find a home in positivism, least of all the positivism of H.L.A. Hart, which Baude makes reference to throughout his paper.  To be sure, some flavors of positivism would allow that secret law isn't law, and thus perhaps conclude that Stalinist Russia just didn't have a legal system when it came to high-level criminal prosecutions.  They might instead describe those prosecutions as non-legal (which is not to say illegal) uses of state force, accompanied by sham legal rituals.  But while some positivists might say that secret law isn't law, it's harder to find a positivist theory on which sham law that doesn't inform a state's legal practices, like parts of the Soviet Constitution, is law.  Even a natural law theorist would be hard-pressed to argue that the Soviet Constitution's free-speech guarantee was the law of Stalinist Russia.

Second, what force Baude's hypothetical has derives from features of the hypothetical that aren't present in the accounts of the Court's practices to which he's responding.  The reason the hypothetical has some force is that it (a) supposes a Constitution that makes the Supreme Court judicially supreme, but then supposes that the Court extralegally suborns itself to a group of actors who exist outside the lawfully constituted and publicly recognized legal order, and (b) supposes that the Court decides cases on the basis of secret instructions.  No one, however, thinks the Court takes its non-originalist marching orders from a secret cabal, or that the Court's successfully kept its non-originalism a secret from all but "a few canny professors," as Baude's Illuminati Court does.  (To the contrary, even the public, to say nothing of professors, tells pollsters that they subscribe to something like the attitudinal model of Supreme Court adjudication.)  Rather, what I and a lot of people think the Court is up to goes something like this.  

The Court sees that the Constitution makes reference to certain concepts - equality, liberty, the freedom of speech.  The Court then, for the most part, deems itself free to enact its preferred conceptions of equality, liberty, speech rights, and the like, which are heavily informed by a mix of personal ideology/political philosophy and the Court's understanding of the public's preferred conceptions of these concepts.  In doing this, the Court doesn't worry about whether the Constitution originally embodied their preferred conceptions, or whether the Constitution's original meaning was truly so vague as to permit of those conceptions, or whether, even, the Constitution's original meaning was to confer liberty rights, equality rights, or speech rights of any robust sort.  (That is, the Court is none too interested in whether the Due Process Clauses' references to liberty were originally understood to substantively protect liberty, or in leading originalists' views that the Equal Protection Clause was limited to guaranteeing race-neutral state protection of personal security and private property, or in originalist arguments that the First Amendment was originally understood to only forbid prior restraints.)  While adverting to originalism in its opinions to some degree, and never expressly rejecting it, the Court is open enough about the essentially normative character of its judgments that all the key players are aware that this is what the Court is up to, so much so that practitioners openly pitch their arguments to the Court's median Justices' very personal conceptions of liberty, dignity, and other values which the Constitution as originally understood may well have had nothing to say about.

If that's how our law is made, who would really say that our law is (rather than should be) originalism, just because some of the Court's opinions talk about originalism and none reject it?  As I understand the Court's interpretive practices, they're not fueled by ex parte communications with secret dictators, nor particularly secret.  Rather, they're fueled by the Court's own fairly publicized normative judgments, which in turn are fueled to some extent by the public's necessarily publicized normative judgments.  Indeed, the public may find that the Court's fairly open normative judgments provide a more accessible and legible basis for constitutional law than the Constitution's contested and somewhat obscure original meaning would.  Thus, even a "soft positivism" that doesn't recognize secret law as law ought to recognize what I describe as law, and not insist that only the Court's descriptions of its interpretive practices can make up our law of constitutional interpretation. 

* To be clear, "judicial insincerity" isn't at all my idea of what the Court's up to, though it may be Posner's or Primus's, as I don't think the Court often makes very strong claims to be doing originalism, and the mere failure to openly reject originalism in opinions that say nothing about originalism isn't itself insincere.  What instances of originalist insincerity there may be are limited, in my view, to the few opinions of the Court that make strong originalist claims.  It is possible, for example, that the voting line-up in Heller, where conservative Justices made one set of originalist claims that led to a conservative result, and liberal Justices made another set of originalist claims that led to a liberal result, reflects bad faith.  It may also be that Justices found what they wanted to find in the original materials and sincerely convinced themselves of their findings.  Or, the line-up's coincidence with partisan breakdowns may just be coincidence.  

I don't think coincidence explains Heller, but I don't believe that knowing insincerity does either.  I think that the Court believed the competing originalist stories it told, and even may have felt itself bound by them.  In fact, I would go so far as to concede that in the vanishingly rare cases where the current Court encounters a constitutional provision on which it hasn't written much, its tendency is to employ a modified form of the textualist approach that predominates in its statutory cases, albeit weighted heavily by consequentialist and normative considerations (Heller, Noel Canning, Zivotofsky).  However, this tendency seems to be limited to cases involving provisions that are new to the Court's review - not, more broadly, to cases presenting questions that are new to the Court.  So I don't think it can be said that the Court employs some version of originalism whenever it isn't constrained by stare decisis (which Baude defines as part of originalism).  To the contrary, once the Court gets in a field at all, its methodology becomes, more often than not, transparently non-originalist thereafter.  Shelby County's discovery of an equal-sovereignty constraint on the enforcement clause of the Fifteenth Amendment is typical in this regard.


2. Popular Constitutionalist Positivism?

Baude's next move is to say that, while Hartian positivism depends on the practices of officials, an alternative positivist theory posits that the content of American constitutional law depends on a different kind of social fact - public opinion.  He then suggests that, since the Court claims to be originalist, or at least doesn't have the temerity to openly reject originalism, it may follow that public opinion is for originalism (else why the false claims) and that originalism is therefore our law.

A couple responses to this.  First, if one were interested in pursuing whether originalism was our law on a popular-constitutionalist positivist theory, one probably wouldn't go about doing it by inferring public opinion from the Court's decisions, as there's no reason to think the Court is a good judge of the public's preferred interpretive methodology.  One would instead inquire directly into public opinion.  In doing so, one would possibly find, e.g., opinion polling showing that while the public claims to want originalism, it likes many non-originalist results while being under no illusion that those results are originalist.  Quite obviously, Baude's article assumes a far more conventional Hartian form of positivism; otherwise, it wouldn't be all about the practices of the Court.

Second, the presence of originalist talk in the Court's opinions could be traceable to any number of things besides a public demand for originalist talk in the Court's opinions.  Here are a few possibilities:

(1) It may be that while judges are fairly comfortable about making normative judgments, they and their law clerks have less facility at putting them into writing, and feel more comfortable making claims about the meanings of legal texts.  

(2) It may be that while the public does not demand originalism, openly acknowledging that a decision deviates from the Constitution's original meaning would cause more controversy than such an acknowledgement would be worth.  Since the Court is fairly skilled at making superficially colorable claims for their decisions' originalist purchase, an open rejection of originalism might gain the Court no additional interpretive freedom at significant cost. 

(3) It may even be that a minority of the public strongly adheres to originalism, and that the Court perceives that disassociating itself from originalism would delegitimize itself in the view of that minority.  I myself suspect that is true, but I don't see that an originalist heckler's veto would constitute our law for popular-constitutionalist positivist purposes.  

(4) It may even be that the Court believes the public supports originalism, and therefore lards its opinions with originalist arguments and vague claims to fealty to original meaning, but that the Court is badly mistaken about what the public wants.  That is, even if we could infer from the existence of disingenuous claims in the Court's opinions that the Court believes the public likes originalism, we could infer nothing further about whether the public really likes originalism.

All of these possibilities are plausible enough that we can't say that, because some of the Court's opinions are originalist and none are anti-originalist, the public probably supports originalism.

Third, the theory seems implausible, as a positivist theory.  If (a) the Court and the bulk of our constitutional decisions are vehemently non-originalist, but (b) the public supports originalism, what sort of positivist would say that originalism not just ought to be, but is the law?

3.  Originalist "Strain"

Baude finally argues that, because the Court strains to reconcile what it's doing with originalism - to show, for example, that constitutional text as originally understood does not unambiguously foreclose their decisions - originalism has "some bite."  I think that depends on the difficulty and sincerity of the strain.  Suppose that judges decide cases first and labor to show that their decisions are compatible with some colorable originalist reading of the Constitution later, and suppose that, whatever the actual facts about the Constitution's original meaning and its ambiguity, and whatever a judge's actual beliefs about those matters, the Court always finds it pretty easy to say that the Constitution's original meaning permits their preferred interpretations, and always does so.  Were that so, would originalism be our law, or even an important part of our law of constitutional interpretation?  I don't think so. Such a purely rhetorical flourish would be no more law than the attractive font the Court writes its opinions in. 

On the other hand, suppose that judges provisionally decide cases first, then check to see whether their decisions are compatible with originalism, and change their minds if they conclude that their provisional decisions are contrary to the Constitution's original meaning.  Then, originalism would be an important part of our law, even though it's not the primary mover in the Court's decisions.  My suspicion is that the strain is more rhetorical than real, but my bottom line is that the mere presence of originalist strain in opinions doesn't, by itself, prove anything.

B.  Does it Matter if the Court's Doing Originalism?

Having concluded that the Court's doing originalism, Baude says it follows that originalism is our law - a move which, by the by, implicitly assumes a traditional positivist model and rejects the popular-constitutionalist model briefly brought in to save the positive turn's reliance on the Court's opinions from charges of insincerity.  (That is, it may be that public opinion is congruent with originalism, but it wouldn't follow that originalism is our law from the fact that the Court does originalism if popular-constituitonalist positivism was the right positivist model here.)  Baude then argues that courts have an obligation to follow originalism, originalism being the law, and that a judge who doesn't do originalism is arguably violating his oath to follow federal law unless he can justify a change to some other, "nonlawful methodology."

I accept a modified version of Baude's first premise: if the Court is really doing originalism and not just saying so, originalism is our law of constitutional interpretation.  I also would agree that courts generally have an obligation to follow the law and should have good reasons for changing the law.  But I don't think that it follows that, if the Court is really doing originalism, courts have an obligation to do originalism.  And even if I thought so, I don't think it would make much difference.

1. Interpretive Methodologies Aren't, Themselves, "Law" in the Relevant Sense

First, it is an odd but characteristic feature of our legal system that courts don't deem themselves fully obligated to use the interpretive methodologies that courts generally use.  For example, as Abbe Gluck has written in several publications, in the world of statutory interpretation, only Chevron is treated as precedent; other cases on statutory interpretation are treated as stating defeasible "rules of thumb."  This has important implications.  If a Justice of the Supreme Court, or a lower-court judge, refused to apply Chevron, we might say he was disobeying the law in the case of the Justice and would say it in the case of the lower-court judge.  On the other hand, though the Court has decided countless cases by reference to legislative history, do we think Justice Scalia is disobeying the law when he refuses to look at legislative history, or is essentially voting to overturn several hundred precedents that do look at it?  Do we even think a lower-court judge who categorically refuses to look at legislative history "disobeys" Supreme Court precedent that legislative history can matter, and is employing a "nonlawful methodology" of interpretation?  Conversely, though the Court's interpretive practices are today predominantly textualist, would we accuse Justice Breyer or a lower-court judge of disobeying the law if they continued to interpret statutes in a purposivist manner?  

I think the answer to all these questions is no.  Rather, we would say that these judges disagree about how to interpret the law, that the prevailing views on interpretation, though they are reasons for holdings of the Supreme Court, are not binding law, but merely a majority view about how to interpret the law, and that the only law here that must be obeyed is the statute at question and perhaps certain "super-canons" of interpretation - Chevron, or some clear statement rules.  (That is, a court that acknowledged a statute was ambiguous but refused to defer to an agency or to give a statute its federalism-favoring meaning would be disobeying "the law.")

The same is true, I think, of constitutional interpretation.  Heller, Shelby County, and Obergefell are understood as binding precedent for their specific holdings.  But Heller's full-dress originalism isn't understood, by the Court or lower courts, as binding precedent for the proposition that the way to interpret the Constitution is full-dress originalism, anymore than Shelby County is understood as binding precedent for the proposition that important rules of constitutional law, i.e., equal sovereignty, can be created out of little more than a string-cite of dicta, or anymore than Obergefell is understood as binding authority for the proposition that courts construe the Constitution in (fill in your description of Obergefell's approach to constitutional interpretation here).  Each is a one-off, or at most one among several similarly reasoned cases.  

Further, even given some uniformity in interpretive methodology, no one views disagreement with that uniform approach as disobedience to the law.  Suppose, as most observers of the Court believe, that the Court's prevailing practices weren't originalist in the late 80s, when Justice Scalia joined the Court.  When Justice Scalia started writing originalist dissents, or better yet, when Robert Bork wrote originalist opinions as a circuit judge in roughly the same timeframe, were they violating their oaths to follow federal law, federal law including, on a modified version of Baude's account, Justice Brennan's living-constitutionalist theories?   Were they obligated to go along with the prevailing methodology until it changed?  I think most people would say not.  They would say that Justice Scalia and Judge Bork had a disagreement about how to interpret the law, namely the Constitution, and that Justice Brennan's interpretive practices, while law in some sense, were not the sort of law that Justice Scalia and Judge Bork had a duty to follow.  Likewise, however originalist the Court has generally been, I'm confident that even Baude would concede that Hugo Black practiced a kind of textualist proto-originalism that was out of step with the interpretive methodology of his colleagues.  Very few people, though, would say that Justice Black disobeyed the law and practiced a "nonlawful methodology" because he refused to acquiesce to his colleagues' rejection of his interpretive approach.

An obvious response to this argument - besides fighting my premises - is that I'm conflating precedent with the much broader category of law.  Baude says the Court has a duty to follow the "law," not just precedent.  I would say, however, that for Baude's argument to go, he has to distinguish between the law officials have a duty to follow and the law officials don't, or show that public officials really have a duty to follow everything that might be described as "law," which seems implausible.  I would further contend that rules of precedent are how we distinguish between the law courts make that officials have a duty to follow and the law courts make that officials don't, and that decisions that interpret the Constitution or statutes aren't usually treated as binding as to their interpretive methodologies.  Baude appears to recognize that something isn't universally "the law" just because it's in a Supreme Court opinion.  For example, he acknowledges that originalism may not be the law of state constitutional interpretation in certain states, though he thinks it's federal law, which is because, of course, the Supreme Court's pronouncements on how to interpret the U.S. Constitution are only persuasive authority on how to interpret the Michigan Constitution.  If he acknowledges that perfectly contingent rule of precedent and deems it constitutive of what the law is on his positivist account, I think he has to recognize others, including the weak precedential status of interpretive methodology.

A caveat - this isn't to say that there are no nonlawful interpretive methodologies.  It may be that extreme noninterpretivist views are unlawful, or that constitutional disobedience is unlawful, or that it would be unlawful to treat decisions interpreting foreign constitutions as controlling (and not just persuasive) authority on how to interpret ours.  What makes these approaches unlawful?  On my view, it can't be - at least, can't be enough - that courts don't do these things.  Rather, I think the reasons might be (a) the fact that public officials, across branches, do generally treat the Constitution as binding, though they disagree on how to interpret its instructions, and (b) a conceptual argument that free-form non-interpretivism, following foreign law as a rule, or constitutional disobedience are inconsistent (in the latter case obviously so) with treating the Constitution as binding.

2.  Justifying Legal Change

Suppose that everything Baude argues up to this point is right - that originalism is our law, that judges therefore have a duty to be originalist, and that they can only deviate from originalism if they justify the deviation.  So what?  As I understand it, the whole point of the positive turn is to say that the fact that originalism is the law is a powerful reason to do originalism, and to shift the burden to non-originalists to justify alternative methodologies.  But how heavy is that burden?  Baude doesn't say.  Is it something like the burden to overcome stare decisis, or is it just the burden of making a forceful argument?  If the latter, it must be said that non-originalists have all kinds of forceful arguments for rejecting originalism.  They may not be right, but they're serious enough to cause people like Baude to despair of proving originalism right normatively or conceptually and to make the positive turn.  

It's difficult, then, to see why it matters if there's some burden on non-originalists to justify a change; they can just make the same arguments against originalism that they've been making for the last 40 years.  If one were to claim that the burden's a high one, that claim would be inconsistent with the general positivist tenor of Baude's argument, as I'm aware of no actual American legal practice that forbids changes in interpretive methodology absent compelling justification.  To the contrary, it is a practice of ours to undertake rapid and cataclysmic change in interpretive methodology without always giving very much reason, particularly in the world of statutory interpretation.  In any event, once a change is made, rightly or wrongly, positivism will call that change the law.  Ultimately, then, hanging a burden on non-originalists to justify non-originalism doesn't do much to avoid normative and conceptual debates over interpretive methodology.

Epilogue:

Michael Ramsey kindly linked to my post and commented that he had a similar reaction to Baude's article:

Suppose it were the case that non-originalism were our law?  Non-originalists like to claim it is, and that therefore we must accept it, in a sort of mirror image of Professor Baude's paper; I think they're wrong as a descriptive matter, but let's assume they're right on the first point.  Would that mean originalists have to concede defeat?  Of course not.  If the Court's current interpretive practices are normatively bad, we should change them.  The same goes for originalism. Whether it's the law or not (or, more precisely, whether it describes Supreme Court practice or not), it has to justify itself normatively or it should be abandoned.  Part of its justification might be (if true) that it's something we've consistently done, but (like Steinberg) I think that carries minimal weight.

I think this is exactly right.  Unless one's something of a Burkean about methodological change, I don't see where a descriptive project gets anyone.  Of course, maybe one should be a Burkean about methodological change; if non-originalism were really this untried experiment, one could reasonably have serious concerns about how it would go.  I tend to think that, if anything, originalism is the untried experiment we should have serious concerns about, as originalism (and serious originalist research) is still so young that we still know very little about where, e.g., originalist First Amendment law or originalist interpretations of Article I would lead us.