20 February 22
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Justice Amy Coney Barrett appears to be quite unfamiliar with her own judicial record, and that of her colleagues.
Her remarks, which were offered at an academic symposium hosted by Notre Dame Law School, were grounded in the rhetoric of judicial restraint that Republican politicians have used to talk about the proper role of the courts at least as far back as Richard Nixon.
The Court’s youngest justice drew a distinction between “pragmatists,” judges who “tend to favor broader judicial discretion,” and “formalists,” who “tend to seek constraints on judicial discretion” and “favor methods of constitutional interpretation that demand close adherence to the constitutional text, and to history and tradition.” She placed herself in the latter camp.
As a justice, however, Barrett has behaved as an unapologetic pragmatist. Along with the Court’s other Republican appointees, Barrett supports flexible legal doctrines that give her Court maximal discretion to veto federal regulations that a majority of the justices disagree with — especially regulations promoting public health or protecting the environment. And she’s joined her fellow Republican justices in imposing novel limits on the Voting Rights Act that appear nowhere in the law’s text.
The rhetoric of judicial restraint is potent, so it is understandable why Barrett wants to tap into that potency. Formalist rhetoric enables the justices to claim that they didn’t roll back voting rights or strike down a key prong of President Joe Biden’s efforts to promote vaccination because they prefer weaker voting laws and a flaccid public health system — they simply did what the law requires.
And Barrett is hardly the only justice to engage in such rhetoric. Justice Neil Gorsuch recently published an entire book claiming that judges should rely almost exclusively on the text of a statute or constitutional provision while interpreting it. Justice Clarence Thomas frequently calls for radical shifts in the law, claiming they are necessary to restore the “original understanding” of the Constitution. Even Justice Samuel Alito, the Court’s most partisan justice, recently attributed his new, entirely atextual limits on the Voting Rights Act to having taken “a fresh look at the statutory text.”
The problem with this rhetoric, in short, is that it bears no resemblance whatsoever to the current Supreme Court’s actual behavior.
“Pragmatism” v. “formalism,” briefly explained
Barrett was at Notre Dame to deliver the keynote address at a symposium on “The Nature of the Federal Equity Power,” a topic that, as Barrett wryly acknowledged in her speech, “sounds like one that only a law professor could love.”
As Barrett explains, “equity” is a legal concept that arose in England as a way of mitigating harsh outcomes that were required by inflexible legal rules. The English system even had a special court, the Court of Chancery, which was a “place for litigants to come” when ordinary legal rules were “too harsh.”
This dual court system, Barrett explained, highlighted a “tension between the demands of the law, which constrains, and the demands of fairness, which is flexible.” Ordinary judges were more akin to mechanical dispensers of legal rules, while judges applying equitable principles had more leeway to reach results they deem fair.
If that tension sounds familiar, Barrett told an audience of mostly law students that it should. “It’s the same dispute that we see in a context that’s probably more familiar to you — the context of constitutional interpretation.”
According to Barrett, there are two opposing sides in this dispute. “Formalists,” such as herself and the late Justice Antonin Scalia, who “favor methods of constitutional interpretation that demand close adherence to the constitutional text, and to history and tradition.” Meanwhile, Barrett claims that “pragmatists” favor a more flexible approach that is less concerned with applying consistent legal rules, and more concerned about the harsh results that can arise from a too-rigid adherence to legal texts.
Most of what Barrett said at Notre Dame is uncontroversial. She fairly summarizes the development of English courts of equity. She is also correct that modern-day judges frequently divide into what she describes as the formalist and pragmatic camps.
But Barrett is wrong to label herself a formalist. In her brief tenure on the Supreme Court, she’s shown extraordinary willingness to join other Republican-appointed justices in opinions that bend the rules of the law in order to achieve results they deem to be just.
No one who joined the Court’s opinion in Whole Woman’s Health v. Jackson can claim to be concerned about the rule of law
Flexibility — what Barrett labels judicial “pragmatism” — is the hallmark of the Roberts Court, and especially the new, proudly conservative majority that Barrett’s confirmation brought into being. The Court’s most high-profile decisions will sometimes ignore the text of the Constitution, or of a major statute, altogether. And the Court frequently applies harsh legal rules to disfavored litigants that it would never apply to political conservatives.
As Scalia once explained, the formalistic demand that legal rules must apply universally to all similarly situated litigants is one of the most important constraints on judicial discretion. “When, in writing for the majority of the Court, I adopt a general rule,” the late justice wrote in 1989, “I not only constrain lower courts, I constrain myself as well.” Because “if the next case should have such different facts that my political or policy preferences regarding the outcome are quite the opposite, I will be unable to indulge those preferences.”
And yet, the current Court doesn’t seem to just indulge such a preference, it revels in it. The most blatant example is the 5-4 decision in Whole Woman’s Health v. Jackson (2021), which Barrett joined in full.
Jackson involved Texas’s anti-abortion law SB 8, a law that effectively bans all abortions after six weeks, in violation of the fetal viability standard established in Planned Parenthood v. Casey (1992). And SB 8 was, in Justice Sonia Sotomayor’s words, designed to “evade judicial scrutiny.”
Ordinarily, when someone wishes to challenge an unconstitutional state law in federal court, they are not allowed to sue the state directly. Rather, such a plaintiff must sue the state official charged with enforcing that unconstitutional law. But Texas tried to design SB 8 so that no state official would be empowered to enforce its anti-abortion provisions — and thus no one could be sued to block the law.
SB 8 relies on a bounty hunter system. Under SB 8, “any person” except for an employee of the state of Texas may bring a lawsuit against any abortion provider accused of performing an abortion after the sixth week of pregnancy. If an abortion provider loses such a suit, they must pay the plaintiff a bounty of at least $10,000 — and there is no upper limit on this bounty.
SB 8, in other words, terrorizes abortion providers by potentially subjecting them to hundreds or even thousands of lawsuits if they are suspected of violating SB 8’s terms.
As Chief Justice John Roberts explains in a dissenting opinion in Jackson, Texas did not actually succeed in writing a law that is not enforced by state officials — and is therefore immune from federal judicial review. Because “the mere threat of even unsuccessful suits brought under SB 8 chills constitutionally protected conduct,” Roberts wrote, “court clerks who issue citations and docket SB 8 cases are unavoidably enlisted in the scheme to enforce SB 8’s unconstitutional provisions, and thus are sufficiently ‘connect[ed]’ to such enforcement to be proper defendants.”
But the five most conservative justices, including Barrett, all backed Texas’s play. Barrett joined an opinion by Gorsuch that effectively immunized SB 8 from any federal lawsuit challenging Texas’s bounty hunter system. (Technically, Gorsuch’s opinion allowed suits to move forward against state health officials who play a minor role in enforcing the law, but their role in doing so is so small than a hypothetical court order against these officials would be basically useless.)
The implications of this decision are staggering. As Roberts writes in dissent, quoting from an 1809 Supreme Court opinion, “if the legislatures of the several states may, at will, annul the judgments of the courts of the United States, and destroy the rights acquired under those judgments, the constitution itself becomes a solemn mockery.” Jackson provides every state with a roadmap that it can use to neutralize virtually any constitutional right.
So what’s really going on here? Would Barrett really vote to uphold a state law subjecting all gun owners to SB 8-style lawsuits? That seems unlikely. Among other things, Barrett is an outspoken proponent of more expansive gun rights. And a majority of the justices appeared inclined to expand the scope of the Second Amendment significantly during a separate case that was argued last November.
But the disagreement between the majority and dissenting opinions in Jackson can be explained by the distinction between formalism and pragmatism that Barrett draws in her Notre Dame speech.
In Jackson, Chief Justice Roberts — a conservative who typically opposes abortion rights — nevertheless takes the formalists’ position: The Constitution is the supreme law of the land. States must follow it. They also must follow Supreme Court decisions, like Roe v. Wade, that interpret the Constitution.
Meanwhile, Justice Barrett, an outspoken opponent of abortion rights, takes the pragmatist’s approach. The opinion she joined in Jackson makes no sense as a matter of legal formalism — taken seriously, it would allow a state government to nullify nearly any constitutional right, including rights that Barrett no doubt wishes to enforce. But the lead opinion in Jackson makes perfect sense if you believe that abortion is murder, and so the interests of justice must bend to the formal demands of the law.
The Court’s Republican majority is giving itself a flexible power to veto federal regulations
Barrett’s pragmatic approach to the law, and that of her Republican colleagues, is also on display in their decisions weighing the Biden administration’s power to protect public health.
Recall that Barrett defined a pragmatic judge as one who tends “to favor broader judicial discretion,” and formalistic judges as those who “tend to seek constraints on judicial discretion.” Since joining the Court, Barrett has sought to maximize her own discretion to veto federal regulations, while eliminating longstanding constraints on judicial power. And she’s largely succeeded in these efforts because she has five colleagues who share the same goal.
Consider the Court’s recent decisions in National Federation of Independent Business (NFIB) v. Department of Labor (2022), which struck down the Biden administration’s rule requiring most workers to either be vaccinated against Covid-19 or be regularly tested for the disease, and Alabama Association of Realtors v. Department of Health and Human Services (2021), which struck down the Centers for Disease Control and Prevention’s eviction moratorium in areas with substantial levels of Covid transmission.
Both cases questioned the power of federal agencies to write binding national regulations under long-existing federal statutes empowering those agencies to do just that. Before former President Donald Trump started remaking the judiciary, the Court’s decisions governing such rules urged judges to be deferential to both the agencies themselves and to the Congress that delegated such power to an agency.
In Mistretta v. United States (1989), for example, the Court held that judges should be exceedingly reluctant to strike down an act of Congress giving a federal agency the power to regulate. And Chevron v. Natural Resources Defense Council (1984) held that courts should typically defer to federal agencies, regarding the scope of the agency’s authority to regulate, if the statute permitting the agency to issue binding rules is ambiguous.
Thus, under Barrett’s distinction between formalist and pragmatic judges, both Mistretta and Chevron are formalistic decisions. Both impose “constraints on judicial discretion,” by requiring that judges defer to federal agencies.
In NFIB and Alabama Association of Realtors, however, the Court walked away from this more restrained approach to judging — with Barrett joining the majority in both decisions. Both cases relied on the so-called “major questions doctrine,” a doctrine that was invented entirely by judges, and that has no basis in any statute or in the Constitution’s text.
This doctrine places vague limits on federal agencies’ power to issue regulations that are likely to have a significant impact. “We expect Congress to speak clearly when authorizing an agency to exercise powers of ‘vast economic and political significance,’” the Court stated in both the NFIB and the Alabama Association of Realtors cases.
The problem with this major questions doctrine is, as federal appellate Judge Jane Stranch wrote in a lower court opinion upholding the Biden administration’s vaccination rules, “the doctrine itself is hardly a model of clarity, and its precise contours—specifically, what constitutes a question concerning deep economic and political significance—remain undefined.” The Court also hasn’t explained just how “clearly” Congress must “speak” if it wishes to delegate important powers to a federal agency.
The major questions doctrine, in other words, is an invitation to pragmatic judging. The major questions doctrine maximizes judicial discretion because it is so vague, and thus permits judges to invoke it whenever they disagree with a federal regulation and wish to strike it down. After all, if no one can say for sure “what constitutes a question concerning deep economic and political significance,” then the ultimate answer to this question will rest with Barrett’s court.
The same can be said about the nondelegation doctrine, a similarly vague constraint on federal agencies advanced by Barrett’s five Republican colleagues. (The Court’s most recent majority opinion discussing this doctrine, Little Sisters v. Pennsylvania, was decided a few months before Barrett joined the Court in 2020. So there is still a little uncertainty regarding Barrett’s views on nondelegation.)
The nondelegation doctrine would scrap the deferential approach that the Court advocated in Mistretta. In Gorsuch’s words, nondelegation calls upon judges to strike down federal laws permitting agencies to regulate, unless those laws were “‘sufficiently definite and precise to enable Congress, the courts, and the public to ascertain’ whether Congress’s guidance has been followed.”
Thus, like the major questions doctrine, the nondelegation doctrine is so vague that it maximizes the discretion of judges to restrict federal agencies. It is a fundamentally pragmatic doctrine under Barrett’s distinction between pragmatic and formalistic judges.
The Court needs to be more honest about what it’s actually doing
Opinions like Jackson, NFIB, and Alabama Association of Realtors are quite disingenuous about what the Court is actually up to in those decisions.
Gorsuch’s opinion in Jackson, for example, tries to present his Constitution-destroying approach as a simple application of a formalistic rule prohibiting federal courts from issuing court orders against state courts. “If it caught on and federal judges could enjoin state courts and clerks from entertaining disputes between private parties under this state law,” Gorsuch wrote, “what would stop federal judges from prohibiting state courts and clerks from hearing and docketing disputes between private parties under other state laws?”
Similarly, the Court often justifies doctrines like nondelegation and major questions by claiming that they are necessary to restore the framers’ vision for how power would be shared between Congress and the executive branch. But, as law professors Julian Davis Mortenson and Nicholas Bagley explain in an important paper, this justification is ahistorical. The first Congress — a Congress made up of many of the Constitution’s drafters — enacted several laws delegating sweeping authority to federal agencies.
I could list more examples of the Court disguising pragmatic legal decisions with a patina of formalistic rhetoric. In Brnovich v. Democratic National Committee (2021), for example, the Court fabricated a bunch of new limits on the Voting Rights Act that appear nowhere in the law’s text — including a strong presumption that voting restrictions that were in place in 1982 are lawful, or a similar presumption favoring state laws purporting to prevent voter fraud. As Justice Elena Kagan wrote in dissent, Brnovich “mostly inhabits a law-free zone.”
But that didn’t stop Justice Samuel Alito, who wrote Brnovich, from claiming that his opinion would “start with a careful consideration of the text” of the Voting Rights Act. Nor did Brnovich’s profoundly pragmatic approach stop Barrett from joining Alito’s opinion.
It would be one thing if this Supreme Court were honest about what it is doing. It could write explicitly pragmatic opinions — which emphasize the justices’ desire to reach results that a majority of them deem to be fair, and which admit openly that these results cannot be justified by any provision of the Constitution or any federal statute.
But the Court is not being honest about what it is doing. Rather than admitting that they are engaged in an unfettered, pragmatic approach to judging, the conservative justices continue to wrap themselves in the rhetoric of judicial formalism. Barrett’s Notre Dame speech is only the most recent example.
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