Barnett on Heller & Method

Randy Barnett argued in Friday's Wall Street Journal* that District of Columbia v. Heller teaches the importance of interpretive philosophy or method in judicial decision-making and the importance of selecting judges who have the right interpretive philosophy. Barnett said:

Justice Scalia's opinion is the finest example of what is now called "original public meaning" jurisprudence ever adopted by the Supreme Court. . . . So what larger lessons does Heller teach? First, the differing methods of interpretation employed by the majority and the dissent demonstrate why appointments to the Supreme Court are so important. In the future, we should be vetting Supreme Court nominees to see if they understand how Justice Scalia reasoned in Heller and if they are committed to doing the same.

(emphasis added)

The problem is that Heller can just as easily be used for the opposite teaching, that interpretive philosophy doesn't matter. As Barnett is arguing that method matters, Segal and Spaeth are surely still arguing that it doesn'™t. In Heller the five justices generally thought to have policy views somewhere to the right of center voted to strike down a highly restrictive ban on handguns. The four justices generally thought to have policy views somewhere to the left of center voted to uphold it. In other words, all the justices (maybe) just voted their policy preferences.

Based on a broader evaluation of his public statements and judicial decisons, Professor Barnett offers support for the view that method doesn't really matter to Scalia:

I would conclude from his Taft Lecture and his behavior on the Court that Justice Scalia is simply not an originalist. Whatever virtues he attributes to originalism, he leaves himself not one but three different routes by which to escape adhering to the original meaning of the text. These are more than enough to allow him, or any judge, to reach any result he wishes. Where originalism gives him the results he wants, he can embrace originalism. Where it does not, he can embrace precedent that will. Where friendly precedent is unavailing, he can assert the nonjusticiability of clauses that yield results to which he is opposed. And where all else fails, he can simply punt, perhaps citing the history of traditionally-accepted practices of which he approves.

Randy E. Barnett, Scalia's Infidelity: A Critique of "Faint-Hearted"€ Originalism, 75 U. Cin. L. Rev. 7, 13-14 (2006).

One case doesn't tell us whether the justices generally vote against their policy preferences when their interpretive methods dictate contrary outcomes, but if we were to select one case as an example that method matters, Heller is not the one.

*If the link to the Wall Street Journal's website ceases to work, Professor Barnett's piece is reprinted on Cato's website.

Comments

[Bill Henderson]

You make a very nice point here. In the Wall Street Journal, you have fewer words to make your point, but more people will read it. In a law review, the opposite relationship holds true. But these two excerpts by Barnett seems facially inconsistent. bh.

[GULC Alum]

Bill, I think the difference between Prof Barnett's writings is due to this:

Randy lost Raich before the Court in 2005, and the part that hurt him the most was the Scalia denied Randy's original meaning arguments in his concurrence. It seemed like Scalia abandoned his originalist principles to avoid the outcome of legalizing marijuana.

But Randy desperately wants to believe that Scalia's an originalist, and he wants to celebrate Heller and the significance that his favorite philosophy of original meaning (vice intent) originalism had in the the opinion. He overlooks Scalia's past deviations to emphasize his outstanding legal reasoning in Heller.

Note also that the WSJ piece is focused on the one opinion, not any other cases where Justice Scalia may have turned from originalism.