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, 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.
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.
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