Thursday, October 29, 2020
Although much has been made of Justice Barrett's originalism, it is more likely that her judicial departmentalism will matter much more. More specifically, I believe that Justice Barrett's Judicial departmentalism will be more important than her originalism in each case in which it matters, and that her judicial departmentalism will be operative in more cases than originalism will be.
Judicial departmentalism is best understood by way of contrast with judicial supremacy. Conventionally, judicial supremacy is the position that the Constitution means for everybody what the Supreme Court says that it means in resolving a case or controversy. Judicial departmentalism, by contrast, is the position that the Constitution means in the judicial department what the Supreme Court says that it means in resolving a case or controversy. Instead of treating judicial departmentalism as an alternative to judicial supremacy, then, we could also treat it as a form of bounded judicial supremacy. The boundaries around Supreme Court authoritativeness are the boundaries around the judiciary.
There is an affinity between originalism and judicial departmentalism insofar as originalism provides an account of what the Constitution means that does not necessarily depend on looking to what the Supreme Court has said. Originalism can therefore provide a reference point for determining whether existing judicial doctrine underenforces or overenforces the Constitution in a variety of ways. As I have previously argued, "[c]onstitutional originalism provides a standard outside of the Supreme Court's doctrine but inside the law that enables one to see how legislation may appear to overenforce when measured against judicial doctrine, but actually does not, because the judicial doctrine underenforces the Fourteenth Amendment as assessed from an originalist perspective."
Justice Barrett's prior academic writings do not explicitly adopt judicial departmentalism. But the concept is relatively new and still somewhat obscure. I first presented the idea publicly at a symposium at William & Mary Law School that I then left early to attend Justice Scalia's funeral. But Justice Barrett's prior academic writings reveal an openness to judicial departmentalism. And Barrett joins the Court after having studied the history and limits of the federal judicial power in greater detail than any other current Justice had studied it prior to joining the Court.
Barrett's scholarship recognizes limits on the authoritativeness of the Supreme Court's say-so in a variety of ways. For example, her scholarship supports skepticism that the Supreme Court possesses inherent supervisory rulemaking authority over other federal courts. And even more importantly, Barrett has explicitly distinguished originalism as a theory of law from originalism as a theory of adjudication. Because of this important and well-founded distinction, judicial implementations of originalism must always remain open to influence by some normative theory of adjudication in addition to a descriptive or prescriptive theory of law. And judicial departmentalism is a component of both a theory of law and a theory of adjudication. There is therefore very good reason to think that Justice Barrett will understand her role on the Supreme Court in self-consciously judicial departmentalist terms. This would provide a welcome contrast with the unselfconscious and often inconsistent judicial supremacy one more commonly encounters.