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Wednesday, January 25, 2017

Judge Gorsuch and the Federal Judicial Oath

President Trump is preparing to nominate someone to the US Supreme Court, presumably creating an opportunity for confirmation hearings to ventilate competing views of the judicial role. I have a draft paper that discusses one aspect of a judge's duty: the federal judicial oath to do "equal right to the poor and to the rich." It turns out that several of the reported front-runners have commented on this oath. Here, I'll explore some interesting albeit brief published comments by the most recent figure to float to the top: Judge Neil Gorsuch of the Tenth Circuit. 

Last year, Gorsuch published some remarks entitled "Of Lions and Bears, Judges and Legislators, and the Legacy of Justice Scalia" (66 Case W. Res. L. Rev. 905 (2016)). The gist of the remarks was that the late Justice Scalia's legacy includes a permanent shift in legal culture away from policy reasoning and toward textual analysis, consistent with Justice Kagan's recent remark that "we're all textualists now."

Though Gorsuch was not focused on oaths, he alluded to them at prominent points in his speech. Near the start of his discussion, Gorsuch asserted the basic importance of the oath:

First, consider the Constitution. Judges, after all, must do more than merely consider it. They take an oath to uphold it. So any theory of judging (in this country at least) must be measured against that foundational duty.
I tend to agree. In fact, the Constitution itself requires an oath or affirmation of constitutional fidelity--the topic of a recent paper of mine. 
Later in his comments, Gorsuch moved beyond the constitutionally required oath to note the more specific and detailed federal judicial oath, which is set out in a statute. Here is the most relevant part of his remarks: 
Throughout my decade on the bench, I have watched my colleagues strive day in and day out to do just as Socrates said we should--to hear courteously, answer wisely, consider soberly, and decide impartially. Men and women who do not thrust themselves into the limelight but who tend patiently and usually quite obscurely to the great promise of our legal system--the promise that all litigants, rich or poor, mighty or meek, will receive equal protection under the law and due process for their grievances. 
That passage ends with a footnote that quotes the statute establishing the federal judicial oath, including the promise to "do equal right to the poor and to the rich." 28 U.S.C. § 453.
But, what does that evocative promise entail? In my draft paper, I explore the history of the equal right principle and argue that it is at least plausibly read as a basis for federal judges to promote substantive economic equality when implementing underdetermined sources of law. I also argue that, through judicial confirmation hearings and other forms of public contestation, the equal right principle can help to specify federal judges’ legal and moral commitments toward the poor. 
Whoever the nominee turns out to be, I hope that the resulting confirmation hearings spend some time exploring what it means to do "equal right to the poor and to the rich."

Posted by Richard M. Re on January 25, 2017 at 09:00 AM | Permalink


Richard, very interesting, as is all your work.

If you don't mind me asking a question based on a quick skim, without reading the full article, here's a question: Am I right that your proposal is that the statutory oath obligates a Judge or Justice to adopt a different view of the Constitution than he or she would otherwise? If so, that strikes me as hard to defend as constitutional, and at the very least really odd. Here's a hypo. Imagine the oath said, "you shall permit any preferences to anyone on account of race." You could interpret that as a general obligation of impartiality: treat everyone alike in deciding cases. Imagine, though that a judge concluded that a fair reading of this oath was that the judge was not, as a matter of judicial oath, supposed to allow any affirmative action program. Assume the judge believes, whether as a matter of precedent or just correct interpretation, that affirmative action programs are constitutional. Isn't it odd to suggest that a statute can require a judge to take an oath that requires the judge to interpret the constitution differently?

One answer to that is that if the oath is read that way, Congress should just change the oath: It's up to the Supreme Court to interpret the Constitution on its own when it decides cases, and Congress shouldn't try to alter those interpretations with an oath. Once they know the Re interpretation, Congress will be on notice and can amend the statute to change the oath. Another answer is that if the oath is unchanged and the Re interpretation stands, it is an unconstitutional infringement on the Article III power. The Constitution gives Congress a way to influence judges by giving the Senate the power to confirm or reject nominees: They can't try to extend that influence by making the judge take an oath to read the Constitution a particular way Congress wants.

Granted, you might say that the oath merely "shapes" constitutional interpretation rather than controls it. But if so, I don't see how that would help. Either the oath changes how a judge is supposed to decide a case or it doesn't. If it changes nothing it doesn't matter, and if it changes something it would seem to amount to congressional control of the judicial power to interpret the Constitution in a way that seems to violate Article III.

Anyway, just a thought. My apologies in advance if you answer this in the article.

Posted by: Orin Kerr | Jan 25, 2017 1:47:55 PM

Oops, sorry: The hypothetical oath above should be, ""you shall not permit any preferences to anyone on account of race."

Posted by: Orin Kerr | Jan 25, 2017 1:50:00 PM

Hey, Orin, thanks for this question. The short answer, as I think you presage in your remarks, is that the oath should operate as an interstitial principle--kind of like a statutorily established canon of interpretation. It shouldn't be used to trump clear law, particularly since judges also take an oath to uphold the law.

So I'm not saying that Congress can usurp the Article III judicial power. Rather, I'm saying that, after a judge has arrived at an under-determined question, the judge should use the oath to resolve the indeterminacy. Similar moves are fairly common. For example, the Court often looks to legislative or executive findings when evaluating constitutional claims against statutes or executive actions.

Now, this does raise the question of "what is indeterminate." In your hypo, perhaps most or all judges think that the constitutionality of affirmative action is dictated by constitutional principles alone. If so, then the hypothetical oath you imagine wouldn't find any application -- and shouldn't.

I say other things relevant to this in the paper, but that's the main point.

Posted by: Richard | Jan 25, 2017 2:48:34 PM

Richard, thanks very much for the reply. If you don't mind, let me push you a bit on where I am still puzzled.

You write: "So I'm not saying that Congress can usurp the Article III judicial power. Rather, I'm saying that, after a judge has arrived at an under-determined question, the judge should use the oath to resolve the indeterminacy."

Isn't deciding cases that raise "under-determined" constitutional questions a core part of the Article III judicial power? I guess it's not clear to me how legislative influence is less problematic if it's only triggered in under-determined cases. Perhaps there's an argument that Article III is only about deciding determinate legal questions, and the underdetermined questions are fair game for the legislature, but I'm not entirely sure what it would be.

It's true, as you note, that there are some discrete contexts where the Supreme Court has decided on its own to consider legislative pronouncements when evaluating specific kinds of constitutional claims. But your proposal seems different to me: It is legislative direction of constitutional interpretation. I guess I'd want to know what the Article III limits of this might be, in your view. If the oath has an influence on interpretation, then Congress will be eager to change the oath to influence how the Supreme Court interprets the Constitution. Imagine Congress required a new oath: “I, ___ ___, do solemnly swear (or affirm) that I will follow constitutional principles in deciding cases where the meaning of the constitution is determinate, but that in deciding cases where the meaning of the constitution is underdetermined, I will discharge my duties so as to favor the platform of the Republican Party." Would that be constitutional, in your view?

Posted by: Orin Kerr | Jan 25, 2017 8:46:59 PM

Richard -- as you know, I entirely agree with Orin. But let me just propose a modest tweak to his final hypo in order to preempt a possible response by you. I suspect that you'll try to duck his AIII objection to the hypothetical Republican Party oath by saying that that oath would itself violate EPC/1A/etc. So instead, what if the oath were that, in cases of constitutional indeterminancy, the judge must resolve underdetermined cases by deferring to the political branches, or, conversely, by accepting the constitutional objection. Such a rule of decision wouldn't violate any constitutional provision if freely adopted by a particular judge, but don't you agree it'd violate AIII for Congress to impose that rule of decision on judges in constitutional cases? And if so, why is the AIII analysis any different for the purported interpretive principle (substantive economic equality) that you impute to the oath?

Posted by: Hash | Jan 25, 2017 11:02:46 PM

John Harrison's excellent essay, The Power of Congress Over The Rules of Precedent, http://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=1094&context=dlj, seems relevant and useful here.

I would also be curious on the commentariat's and Richard's view about whether Congress has Article I power (presumably under the Necessary and Proper Clause) to specify:

1. The current "equal right" oath
2. The Republican party oath suggested by Orin
3. The judicial deference oath suggested by Hash
4. Any interstitial oath of any kind it wishes?

Posted by: William Baude | Jan 26, 2017 12:07:42 AM

Will -- my tentative view is that:

(1) Congress has A1 power to impose the "equal right" oath so long as it is properly interpreted as merely requiring formal equality (contra Richard's substantive-equality interpretation): given that impartiality is already a due-process requirement, it's both "proper" to impose such an oath and an immaterial incursion on A3.

(2) By contrast, any oath that purports to constrain A3 judges' decisionmaking (interstitial or otherwise) beyond what the Constitution already requires is not "proper" under A1, as it would be inconsistent with both letter and spirit of A3.

(3) But, absent A3, I don't think there'd be a N&P problem, in the sense of an oath being a "great" power rather than an incidental power to creating courts and judges. Indeed, for non-A3 tribunals (e.g., the Claims Court, or DC local courts), an interstitial oath that didn't violate the BOR (e.g., my judicial-deference hypo) is likely permissible under A1.

Posted by: Hash | Jan 26, 2017 1:19:42 AM

And Hash, does that mean that for A2 officials, Congress could impose something like the "equal right" oath, or an even more forceful one?

Posted by: William Baude | Jan 26, 2017 8:04:44 AM

I'm not sure about a2 officials. On one hand, executive officials aren't required by due process to be impartial, and so oath could be intruding on executive power, especially for constitutional execution. On other hand, at least for statutory execution, oath might not be materially different than an overarching statute governing the proper interpretation of federal law (like rfra). would need to think more about this

Posted by: Hash | Jan 26, 2017 10:42:47 AM

Many thanks for these thoughts! Here are a few quick reactions.

I agree w/Hash that Orin’s hypo would involve an oath to violate the Constitution. But I also agree that Orin’s deeper point is to push on my asserted link between a statutory oath and constitutional interpretation.

Before saying more about this, let me just note that a lot of the potential implications I discuss do not require changes in constitutional law. Many involve interpretation of statutes or rules of procedure. And others involve discretionary allocation of judicial resources. Those possibilities are largely unaffected by the concerns that Orin and Hash have raised.

But what about Hash’s adjusted hypo, where the oath requires deference to the political branches in constitutional cases? Because I view the oath as interstitial, somewhat like a canon, I cannot generalize too broadly about how a hypothetical oath like this would function. To figure out the oath’s implications in any given context, we need to know not only about the oath, but also about the area of law where it is being applied.

That said, I think that Hash’s hypo isn’t that different from two kinds of implication that I already discuss in the draft. First, I suggest that courts applying scrutiny frameworks might view the oath as a basis for identifying permissible or compelling governmental interests. Second, I suggest that courts inclined to “under-enforce” constitutional principle might view the oath as an authorization not to engage in that under-enforcement. Both of those possibilities would resemble oath-based modifications to the level of "deference" afforded the political branches.

A broader point here: I don’t view the oath as ordering certain constitutional outcomes, so much as affecting them. This point goes to the more general difference between legislation’s effect on statutory cases, as opposed to constitutional cases. It is common for statutes and other actions by the political branches to influence constitutional holdings. Statutory law, especially when longstanding, can persuade the Court that certain interests are important, that certain facts are true, and that certain institutional arrangements are workable, etc. I view the federal judicial oath as fitting within that broad pattern.

Will and Hash have some neat thoughts centering on the Necessary and Proper Clause. Just a brief thought here: In my view, the current oath’s historical pedigree strongly suggests that it is N/P to require such a promise, and the paper notes some founding-era debates about oaths and the N/P power, including in Congress. But, again, the oath’s implications are interstitial on my view, and so its ultimate effect depends on the specific legal context where it is applied.

Posted by: Richard | Jan 26, 2017 11:35:49 AM

PS -- This discussion has prompted me to realize, among other things, that the paper should include the following quote from McCulloch:

"The oath which might be exacted — that of fidelity to the constitution — is prescribed, and no other can be required. Yet, he would be charged with insanity, who should contend, that the legislature might not superadd, to the oath directed by the constitution, such other oath of office as its wisdom might suggest."

Posted by: Richard | Jan 26, 2017 12:15:06 PM

"charged with insanity"

an early example of gratutious comments that should be left off

Posted by: Joe | Jan 26, 2017 8:59:54 PM

"I explore the history of the equal right principle and argue that it is at least plausibly read as a basis for federal judges to promote substantive economic equality when implementing underdetermined sources of law. "

More onanism, in case we all needed it.

Posted by: Art Deco | Jan 28, 2017 6:08:27 PM

Some miscellaneous thoughts:

I agree that statutory law can properly persuade that - well, have some persuasive weight as to whether - certain interests are important in constitutional cases, but I think the judicial oath is probably the least persuasive bit of statutory law out there as to what interests are important. This is partly because the various phrases in the oath have very little content, partly because the judicial oath is very old and its not being repealed or amended doesn't tell me anything about what interests contemporary Congresses think are important, and partly and very largely because, well, it's not operative law, it's just an oath.

As to statutory interpretation, everyone seems to be assuming that it's just fine for the First Congress to enact a law by which judges are bound to interpret statutes enacted by the 114th Congress in ways that further substantive economic equality; assuming that's really what the judicial oath did (though I don't believe it does, even if "equal right" means economic equality), I don't think it could constitutionally do so, on which see Larry Alexander and Sai Prakash's "Imposing Mandatory Prospective Rules of Stautory Interpretation"** and Linda Jellum's "When Statutory Directives Violate Separation of Powers."*** I think it should be fairly obvious that not every statute is best read, where ambiguous, to further substantive economic equality, that not every Congress is remotely interested in substantive economic equality, and that reading the oath to impose an economic-equality tiebreaker would frequently result in interpretations of statutes inconsistent with the preferences of the enacting Congress or the reasonable meanings of the statutes being interpreted. You can say that the oath only applies interstitially (though where does that come from, and even if that's right, how would one go about deciding whether the oath works as a really strong canon or a fairly weak one, as the oath says nothing about it?), but not every ambiguity is a free-for-all; in the case of many (most?) ambiguities, one reading is better given structure, context, purpose, ordinary usage, legislative history for those who use it, etc. Imagine - something you actually do imagine in your paper - if King v. Burwell read, "'established by the State' can mean what it literally means, and usage elsewhere in the statute suggests it can mean something else, so the statute's ambiguous and since the latter reading is better for economic equality, under our oath we're required to hold that the government wins." What the Court actually does, which is adduce reasons from within the statute itself to think it's best read to afford credits on federal exchanges, even after having found ambiguity, makes infinitely more sense. You might say that Congress could repeal the oath or enact statute-specific repeals of the equal-right principle if it doesn't want courts to interpret a particular statute in favor of economic equality, but that (a) would require Congress to think in the first place that the oath means what you think it means and actually has any bearing at all on how judges should interpret the law, which are things Congress probably doesn't think, and (b) is utterly politically unfeasible - I can't imagine Congress writing into a particular statute, "when interpreting it, don't follow your judicial oaths/forget about equal right," or amending this ancient oath to make it really clear that they don't care about substantive economic equality.

** http://conservancy.umn.edu/bitstream/handle/11299/169406/20_01_Alexander_Prakash.pdf?sequence=1

*** http://www.uclalawreview.org/pdf/56-4-2.pdf

Posted by: Asher Steinberg | Jan 28, 2017 9:38:33 PM

Asher, Thanks very much for these thoughtful comments. Just to be clear, I too would not rely on the oath where doing so would be (in your words) "inconsistent with the preferences of the enacting Congress or the reasonable meanings of the statutes being interpreted." That is what I mean when I say the oath can play an "interstitial" role. And that view also seems compatible with the Larry Alexander & Sai Prakash piece, despite its relatively narrow view of when interpretive guidance is permissible. (My approach does seem incompatible with the strict rule that Linda Jellum proposes, but even she "[c]andidly" notes that the strict rule is "formalistic" and, "possibly, unworkable.") So, again, this pushback is helpful -- but I am not sure we actually disagree on the fundamental point about how the oath can operate interstitially; rather, the dispute may be limited to discrete (albeit important) applications.

Posted by: Richard | Jan 29, 2017 2:18:56 PM

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