Predictably, the recent confirmation of Supreme Court justice Amy Coney Barrett triggered a fresh round of divisive political messaging, as Democrats and Republicans alike sought to capitalize on the moment. But the perception of politics as a clash between two unified ideological fronts masks an important, if hidden, reality: throughout the broadly right-of-center legal world, there have been a number of prominent dustups over interpretive methodology over the course of the past year. Though the specific arguments at issue may seem technical and arcane, they all center on a very ancient question: what does it take to be a good judge?
The modern conservative legal movement is structured around two central interpretive principles, which play an organizing role akin to the doctrine of inerrancy in many Christian denominations. Originalism is the view that the U.S. Constitution should be interpreted according to its “original public meaning”—that is, according to how an ordinary person would have understood the text at the time of initial enactment. The emphasis here is stability of meaning: whatever the phrases “keep and bear arms” or “establishment of religion” meant in 1789, they should mean today. Textualism applies this principle to statutes, or laws enacted by the legislature: whatever a law meant when first enacted is what it should mean today. These twin principles have sustained the movement for the better part of a generation—but in 2020, originalism and textualism sustained two notable body blows.
In March, Harvard Law School professor Adrian Vermeule penned a piece in The Atlantic asserting that originalism had broadly failed to promote the public good: far better to adopt a constitutional philosophy willing to “read into the majestic generalities and ambiguities of the written Constitution” such principles as “respect for the authority of rule and of rulers,” “respect for the hierarchies needed for society to function,” and “a candid willingness to ‘legislate morality.’” Though Vermeule’s view is certainly an outlier, the piece stirred up a hornet’s nest of criticism from the legal academic establishment. And there’s a simple reason for the vehemence of the response: Vermeule wasn’t wrong to note that “originalism” has been substantially defined down, to the point where it is invoked to justify outcomes that would likely be quite alien to the Constitution’s framers.
And that was just the beginning. In June, Justice Neil Gorsuch wrote, in the case of Bostock v. Clayton County, that Title VII—the federal employment law forbidding discrimination “because of sex”—applies not only to discrimination between men and women, but also prohibits discrimination against individuals on the basis of sexual orientation and gender identity. Though Bostock came couched in the language of textualism, many observers denounced the opinion as relying on a tortured, acontextual reading of the text. Shortly after the decision came down, Senator Josh Hawley took to the floor of the U.S. Senate to criticize the ruling, expressing skepticism of versions of originalism and textualism that could produce such an outcome.
If textualism and originalism give you this decision, if you can invoke textualism and originalism in order to reach a decision, an outcome, that fundamentally changes the scope and meaning and application of statutory law, then textualism and originalism and all of those phrases don’t mean much at all.
And so the critical questions press in. Are these methodologies intellectually bankrupt? Are originalism and textualism indeed meaningless? Or, perhaps, do these principles tell only part of the story where judging is concerned?
In order to properly answer this question, maybe it’s worth considering some sources beyond the usual ones. While reviewing Martin Luther’s short treatise On Civil Authority in the course of a different project, I came across some stray reflections by the Reformer that struck me as surprisingly relevant to these interpretive debates.
If a prince is not wiser than his lawyers and does not have deeper understanding than is in his law books, he will surely rule after the saying in Proverbs xxviii: “A prince who lacks wisdom will unjustly oppress many.” . . . For however good and proper laws are, they are all subject to one limitation, that they cannot make head against necessity. Hence a prince must have the law firm in his hand in the form of the sword, and measure with his own reason when and where the law is to be administered with severity or to be mitigated, so that reason may always dominate the law and be the supreme law and master of all law. . . I say this that it may not be considered enough and a commendable course to follow the written law, the lawyers’ law; something more is needed.
In Luther’s day, in a monarchical system with no developed separation-of-powers principle, the sovereign was—for all intents and purposes—the personal embodiment of the law. That has since changed: in the United States, legal authority is now split between legislative, executive, and judicial branches. But Luther’s underlying idea still has relevance for those charged with the task of government as they contemplate their duties.
No doubt it is possible to read Luther’s words as merely a sop to political absolutism, a theological get-out-of-jail-free card for monarchs eager to suppress a revolting peasantry. But that is a simplistic reading that, perhaps, misses the more important point: Luther’s recognition that the interpretation and enforcement of the law is never a purely mechanical exercise.
In the process of translation from legal text to real-world circumstance, discretionary analytical decisions are always made—which sources to consult, how long to research a given issue, how much credibility a given authority merits, and so forth. And because all these “behind-the-scenes” dynamics are largely invisible to public view, it is crucial for leaders to consider—in the vein of this recent First Things piece by Patrick Deneen—the genuine moral formation of those tapped to serve their neighbors as judges. It is one thing to pay lip service to “the written law, the lawyers’ law” when pressed on the issue during a Senate hearing—but quite another to be the sort of person capable of faithfully interpreting and applying that law in novel, highly contentious situations. Not all who take the bench possess the sort of “deeper understanding” that Luther understands to be an irreducible feature of good governance.
What might all this mean for this year’s interpretive controversies? Perhaps one might phrase the matter as follows: a judge ought not abandon his commitment to faithful interpretation of the law—written laws, as Luther reminds his readers, may indeed be “good and proper”—but those who appoint or elect him ought to seek signs that he is indeed wiser than a mere interpretive automaton, and indicators that he possesses the “reason” required to exercise his legal power justly and well.
And that, in the end, is a truly commendable course.
John Ehrett is executive editor of Conciliar Post, an online publication dedicated to cultivating meaningful dialogue across Christian traditions, and a Patheos columnist writing at Between Two Kingdoms. He is a graduate of Yale Law School and is currently pursuing a Master of Arts in Religion at the Institute of Lutheran Theology.