During Chief Justice Roberts's confirmation hearing, he refused to call himself an originalist. And during his nearly two decades on the Court, he has never raised the banner of originalism. But he sure does like to cite history. And it is generally history with a John-Roberts spin. Take Trump v. Vance for example. He relied extensively on Chief Justice Marshall's rulings in the Aaron Burr treason trials. But, as I noted at the time, "Roberts recounted a sanitized version of this seminal dispute." And that history served Roberts's goal of promoting the utmost power of the judiciary over the other branches.
We saw some similar revisionism in Loper Bright. First, Roberts cited Federalist No. 37. This paper is frequently associated with the concept of liquidation–that is, when the political branches engage in some sort of long-term settlement, the meaning of the Constitution itself can be settled, or liquidated. Indeed, this paper has been cited often of late. Justice Kavanaugh raised it during oral argument in Trump v. Anderson. Justice Kagan invoked it in her CFPB concurrence. Justice Barrett relied on that paper in her Vidal concurrence. Justice Kavanaugh leaned into it in his Rahimi concurrence and his Moore majority opinion.
In Loper Bright, however, Roberts seems to recast Federalist No. 37. For Roberts, the liquidation does not occur through settlement in the political branches. Rather, he sees the liquidation as being performed by the Courts themselves. Part II-A opens this way:
Article III of the Constitution assigns to the Federal Judiciary the responsibility and power to adjudicate "Cases" and "Controversies"—concrete disputes with consequences for the parties involved. The Framers appreciated that the laws judges would necessarily apply in resolving those disputes would not always be clear. Cognizant of the limits of human language and foresight, they anticipated that "[a]ll new laws, though penned with the greatest technical skill, and passed on the fullest and most mature deliberation," would be "more or less obscure and equivocal, until their meaning" was settled "by a series of particular discussions and adjudications." The Federalist No. 37, p. 236 (J. Cooke ed. 1961) (J. Madison).
The subtext here is that the courts, and not the executive branch, would resolve ambiguities in the text of the laws. Who know that Madison came out against Chevron deference!?
But here is what Madison wrote in Federalist 37:
The experience of ages, with the continued and combined labors of the most enlightened legislatures and jurists, has been equally unsuccessful in delineating the several objects and limits of different codes of laws and different tribunals of justice. The precise extent of the common law, and the statute law, the maritime law, the ecclesiastical law, the law of corporations, and other local laws and customs, remains still to be clearly and finally established in Great Britain, where accuracy in such subjects has been more industriously pursued than in any other part of the world. The jurisdiction of her several courts, general and local, of law, of equity, of admiralty, etc., is not less a source of frequent and intricate discussions, sufficiently denoting the indeterminate limits by which they are respectively circumscribed. All new laws, though penned with the greatest technical skill, and passed on the fullest and most mature deliberation, are considered as more or less obscure and equivocal, until their meaning be liquidated and ascertained by a series of particular discussions and adjudications.
Were those "discussions and adjudications" to be performed by the courts? Or by the political branches? I've always read Madison to be suggesting that the courts are not the sole expositors of the law–and indeed, they may be inadequate to this task. This is especially true where the laws are "obscure and equivocal." The "discussions and adjudications," therefore, would occur outside the courts in the political branches. And this is precisely how Justices Kagan, Kavanaugh, and Barrett have looked to Federalist No. 37.
But this conception does not fit what Roberts is trying to do in Loper Bright–to show that the courts, and really the Supreme Court, are the final expositor on the meaning of law–especially ambiguous laws. Don't even try to reconcile this conception of judicial supremacy with all of the other recent decisions looking to "tradition," Rahimi among others.
Roberts returns to Federalist No. 37 in his discussion of ambiguity:
As the Framers recognized, ambiguities will inevitably follow from "the complexity of objects, . . . the imperfection of the human faculties," and the simple fact that "no language is so copious as to supply words and phrases for every complex idea." The Federalist No. 37, at 236.
Again, Federalist No. 37 would suggest that the political branches would be due some deference in interpreting statutes, to the extent liquidation occurred. But Roberts discounts executive branch interpretations–tradition–as just another "interpretive aid."
Such respect was thought especially warranted when anExecutive Branch interpretation was issued roughly contemporaneously with enactment of the statute and remained consistent over time. See Dickson, 15 Pet., at 161; United States v. Alabama Great Southern R. Co., 142 U. S. 615, 621 (1892); National Lead Co. v. United States, 252 U. S. 140, 145–146 (1920). That is because "the longstanding 'practice of the government'"—like any other interpretive aid—"can inform [a court's] determination of 'what the law is.'" NLRB v. Noel Canning, 573 U. S. 513, 525 (2014) (first quoting McCulloch v. Maryland, 4 Wheat. 316, 401 (1819); then quoting Marbury, 1 Cranch, at 177).
A long-standing practice is no different than an interpretive canon, for Chief Justice Roberts. There is a tension between Loper Bright and Rahimi. But each day is a new day for the Chief Justice.
Look at the second act of revision Roberts made. He rewrote one of the most famous Federalist papers. See if you notice it on your first read–it is subtle:
The Framers also envisioned that the final "interpretation of the laws" would be "the proper and peculiar province of the courts." Id., No. 78, at 525 (A. Hamilton).
What word in that sentence does not belong? Final.
Here is Hamilton's text in Federalist No. 78:
The interpretation of the laws is the proper and peculiar province of the courts.
Hamilton said nothing at all about the Court's being the "final" body that interprets the law. Indeed, this concept of finality is inconsistent with the proper way of reading Federalist No. 37–that the political branches too can interpret the law.
But again, this notion is inconsistent with what Roberts wanted to say about Chevron–that the courts, and not the executive branch should have the final say about how to read the law.
Here, we see two subtle challenges that rewrite foundational Federalist papers, all in the service of John Roberts's conception of judicial supremacy.
Roberts's revisionism is not limited to the Federalist. He targets Chief Justice Marshall and Justice Story.
This Court embraced the Framers' understanding of the judicial function early on. In the foundational decision of Marbury v. Madison, Chief Justice Marshall famously declared that "[i]t is emphatically the province and duty of the judicial department to say what the law is." 1 Cranch 137, 177 (1803). And in the following decades, the Court understood "interpret[ing] the laws, in the last resort," to be a "solemn duty" of the Judiciary. United States v. Dickson, 15 Pet. 141, 162 (1841) (Story, J., for the Court).
Marbury says nothing at all about the Court's being final. See my article on Cooper v. Aaron. And neither did Story in Dickson. Here is the full passage from Justice Story's opinion:
But it is not to be forgotten, that ours is a government of laws, and not of men; and that the judicial department has imposed upon it by the constitution, the solemn duty to interpret the laws, in the last resort; and however disagreeable that duty may be, in cases where its own judgment shall differ from that of other high functionaries, it is not at liberty to surrender, or to waive it.
This is not some sort of appeal to judicial supremacy. Justice Story was talking about a disagreement with the Treasury Department. The precedent that Roberts is thinking of is Cooper v. Aaron, but he wouldn't dare reach for it.
Ultimately, I'm not sure any of this analysis matters. The opinion could have stood on its own without retconning Federalist No. 37 and 78.
Update: I had forgotten that Justice Thomas cites these two Federalist Papers, in context, in his concurrence from Perez v. Mortgage Bankers Association (2015):
Those who ratified the Constitution knew that legal texts would often contain ambiguities. See generally Molot, The Judicial Perspective in the Administrative State: Reconciling Modern Doctrines of Deference with the Judiciary's Structural Role, 53 Stan. L.Rev. 1, 20–21, and n. 66 (2000); Nelson, Originalism and Interpretive Conventions, 70 U. Chi. L.Rev. 519, 525–526 (2003). As James Madison explained, "All new laws, though penned with the greatest technical skill and passed on the fullest and most mature deliberation, are considered as more or less obscure and equivocal…." The Federalist No. 37, at 229.
The judicial power was understood to include the power to resolve these ambiguities over time. See ibid. Alexander Hamilton lauded this power, arguing that "[t]he interpretation of the laws is the proper and peculiar province of the courts." Id., No. 78, at 467. It is undoubtedly true that the other branches of Government have the authority and obligation to interpret the law, but only the judicial interpretation *120 would be considered authoritative in a judicial proceeding. Vile 360.
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