12/15/2016

Mary Anne Case: Scalia as Procrustes for the Majority, Scalia as Cassandra in Dissent [Updated with Comment]
Michael Ramsey

Mary Anne Case (University of Chicago Law School) has posted Scalia as Procrustes for the Majority, Scalia as Cassandra in Dissent (Forthcoming in Jahrbuch des öffentlichen Rechts der Gegenwart 2016) on SSRN.  Here is the abstract:      

Using Greek myth to illuminate some of the late Justice Scalia's rhetorical moves, this essay argues that as an author of majority opinions Scalia was often Procrustes, leaving no case behind but forcing all prior doctrine into the shape he needed for the new law of rules he was announcing. In dissent, by contrast, Scalia could be Cassandra: describing what for him are the drastic consequences he foresees from the majority’s logic, he often paints a prophetic picture which in time comes true, perhaps in part because of rather than in spite of his horrified articulation of an opinion’s implications. While the progression of gay rights cases from Romer through Obergefell is the clearest and most sustained example of Scalia as Cassandra, his procrustean majority opinions include Employment Division v. Smith. For each of these cases, the essay examines the structure and unintended consequences of Scalia's approach.

Scalia's own procrustean moves as a federal judge are in some tension with his criticism of similar behavior by non-common law judges in his 1995 Tanner Lectures on Common-Law Courts in a Civil-Law System: The Role of United States Federal Courts in Interpreting the Constitution and Laws. The essay explores whether some of that tension might be reduced by focusing on the fact that Scalia's most procrustean moves come in cases involving the incorporated bill of rights, for which he sees no textual warrant and therefore is of necessity acting as a common law judge, without access to a civil-law-style alternative to the methodologies of the common law.

(Thanks to Michael Perry for the pointer).

The essay makes some fair criticisms, but I think it errs (or at least overstates) on the point made in the second paragraph of the abstract (pp. 8-9 of the essay) -- that Scalia "s[aw] no textual warrant" for "the incorporated bill of rights."  The essay's only cite for this proposition is McDonald v. Chicago, in which Scalia reluctantly acquiesced in the use of the due process clause as the basis for incorporation on the basis of precedent.  I don't think, though, that this proves Scalia rejected incorporation as an original matter -- only that he rejected the due process clause as its basis.  So far as I know, Scalia never directly gave his view on incorporation via the privileges or immunities clause.  True, in McDonald he refused to join Justice Thomas' opinion, which argued for shifting the basis of incorporation from the due process clause to the privileges or immunities clause.  But as Scalia expressly wrote in concurrence, he was reluctant to overturn precedent (and create further uncertainties) on this point.

To the contrary, I speculate that the reason Scalia was generally comfortable with an aggressive application of the bill of rights to the states (not just in McDonald, but in free speech, takings, search and seizure, confrontation clause and trial by jury) lay in his (unexpressed) conclusion that the privileges or immunities clause was a satisfactory textual basis.

UPDATE:  William Baude comments:

I was interested in your recent post on Scalia and incorporation. Since I think that the original meaning of the 14th Amendment did incorporate the bill of rights, I would love it if Justice Scalia agreed. But I worry he didn't.

I haven't researched this fully, but I've seen several reports of Justice Scalia giving remarks criticizing  incorporation as a matter of first principles, even if he accepted it as a matter of stare decisis. For instance:

Speaking just [in February 2009] at the Hoover Institution, Scalia argued (approx. 24:20) that the doctrine of “incorporation,” which holds that the Bill of Rights applies to state governments via the Fourteenth Amendment, is a “mistake” and is “probably false.” 

http://theusconstitution.org/text-history/1391

See also http://www.firstamendmentcenter.org/justices-remarks-prompt-a-review-of-first-amendment-interpretation

But as I say, I'd love to be wrong about this!

12/14/2016

Clear Originalist Cases
Mike Rappaport

One of the difficult issues for originalism is what it means concretely for the United States Constitution.  What actually is in the original meaning of the various provisions of the document?

I must admit that I find this to be difficult.  If one has a sophisticated and open minded view of interpretation – which I like to believe I do – many clauses of the document are simply not clear, unless one has done the extensive historical research.  Even then, the resolution of issues will often be a matter of judgment.  Thus, it is sometimes difficult to make firm statements about the original meaning.

Of course, that people cannot be sure of the original meaning without doing the historical research does not mean that the original meaning would be unclear once one does the historical research.  I am very confident, for example, that the original meaning of the Recess Appointments Clause is limited to vacancies that arise during the recess of the Senate, even though some people might not be sure of the matter before doing the historical research (and others even think the opposite after doing the historical research).

It is important to note that much of the fault lies here with nonoriginalism, not originalism.  For the last several generations, judges and law professors have generally not been concerned about the original meaning of provisions and therefore have not undertaken the necessary research to understand these matters.  But whatever the cause, I often feel frustrated about my inability to address the original meaning.  So I often write like one of those two handed economists that Harry Truman complained about, who after making a point in one direction, would then, after saying “on the other hand," make a point in the opposite direction.  See for example here and here.

Yet, there are many cases where the original meaning appears to be clear.  In a recent brief article, originalists Will Baude and Stephen Sachs make some claims about cases where the original meaning was clear and not followed:

In our theoretical work we’ve tried to avoid getting sucked into specific historical or doctrinal controversies, as that might detract from our arguments about theory. But perhaps the time has come to start naming names. Without having done the research ourselves, we doubt (say) that the original Constitution let states impair contracts on claims of “economic emergency”—or that this power was ever lawfully conferred since. We likewise doubt the pedigree of modern cases on executive agreements; jury numbers or unanimity; counsel comment on failure to testify; one-person one-vote;  diversity jurisdiction for D.C. citizens; “commerce” regulation of wholly intrastate activity; [and] administrative adjudication of private rights. . . Maybe the cases are right despite our doubts, or at least tolerable under original doctrines of stare decisis.

I agree with this list of cases -- and I could add to it.  It would be interesting to see how many cases I could come up with.

Derek Muller on Raymond Gruender for Supreme Court
Michael Ramsey

In the St. Louis Post-Dispatch, Derek Muller (Pepperdine/Excess of Democracy blog): An outstanding choice for U.S. Supreme Court vacancy.  From the introduction:

This election gave us a surprise: President-elect Donald Trump. And he will nominate someone to fill a vacancy on the U.S. Supreme Court due to the passing of Justice Antonin Scalia. The stakes are high as the court prepares to hear important matters of constitutional law, including a case concerning religious liberty in Missouri, Trinity Lutheran Church of Columbia v. Pauley. [Ed.:  see here]

Last summer, Trump listed a number of individuals he would consider nominating to fill a Supreme Court vacancy. One of those names is Judge Raymond Gruender, a St. Louis native who now sits on the United States Court of Appeals for the 8th Circuit. And perhaps the best person to serve as the next Supreme Court justice is Gruender, whose dissenting opinion in Trinity Lutheran Church distinguishes him as an outstanding choice.

(Via How Appealing).

For background on Judge Gruender, who has not received as much attention as others, see Andrew Hyman's Supreme Court nominee resources page.

12/13/2016

Randy Barnett on Abandoning the Defensive Crouch
Michael Ramsey

At Volokh Conspiracy, Randy Barnett: Abandoning Defensive Crouch Conservative Constitutionalism.  From the introduction:

Back on May 6th on Balkinization, Harvard law professor Mark Tushnet had some advice for “liberals” entitled: Abandoning Defensive Crouch Liberal Constitutionalism. It provides a useful road map to what Democrats had in store for us had Hillary Clinton been elected. But it also serves as a guide to what a conservative Court should–and should not–be doing now that this constitutional bullet has been dodged.

And from later along:

As Tushnet helpfully previewed, had Clinton been elected, thirty years of “conservative” tinkering-at-the-margin was going to be swept away and much, much more. No doctrine of stare decisis or “precedent” would have stood in the way. The left side of the Court has never conceded the precedential value of the past 30 years of “conservative” decisions. In constitutional law, the doctrine of stare decisis is a ratchet and ratchets only go one way, and that way is towards increased national power, and delegation to the Administrative-Executive State–qualified only by judicially-selected “fundamental rights” and protected “suspect classes.”

But Tushnet was right in principle. As I have long maintained (see here), the law of the Constitution should take priority over the mistaken rulings of previous justices. What Tushnet and I disagree about is what the Constitution means. He thinks it means progressive results; I think it means what it says. If New Deal, Warren and Burger court decisions were–in Tushnets words–“wrong the day they were decided,” then they should be reversed and replaced by the original meaning of the Constitution itself.

12/12/2016

Occupational Licensing in the Yale Law Journal Forum
Michael Ramsey

The Yale Law Journal Forum has a mini-symposium on "Occupational Licensing," with substantial originalist overtones.  Here are the contributions and opening paragraphs (footnotes omitted):

The Due Process Right To Pursue a Lawful Occupation: A Brighter Future Ahead?, by David E. Bernstein (George Mason), 126 Yale L.J. F. 287 (2016).

For decades, the Supreme Court has rejected arguments that the Fourteenth Amendment’s Due Process Clause protects a general right to liberty of contract worthy of more than cursory judicial attention. Instead, the Court, along with most state courts, has reviewed economic regulations that do not implicate the Bill of Rights under a very forgiving version of the rational basis test that leaves little room for successful challenges. Despite remonstrations from libertarian enthusiasts inside and outside of the academy, there is no realistic prospect that judicial protection of liberty of contract will be reasserted anytime soon.

Recent precedent, however, suggests that courts are becoming more protective of what has traditionally been considered a subset of liberty of contract: the right to pursue an occupation. The Texas Supreme Court’s opinion in Patel v. Texas Department of Licensing & Regulation is a dramatic example of a court reconsidering decades of judicial deference to all manner of occupational regulations. Patel invalidated a law that required individuals who make their living by threading eyebrows to obtain a cosmetology license, which requires costly, time-consuming training that is almost entirely irrelevant to eyebrow threading. Instead of applying the usual flaccid version of the rational basis test, the court concluded that, under the Texas Constitution, the government cannot meet the test if “the statute’s actual, real-world effect as applied to the challenging party . . . is so burdensome as to be oppressive in light of[] the governmental interest.”

Meanwhile, a series of federal court opinions has held that mere economic protectionism favoring incumbents does not count as a rational basis that can sustain occupational regulations under the Fourteenth Amendment.4 These decisions are consistent with ancient Anglo-American constitutional tradition opposed to governmental grants of monopoly power to aid favored businesspeople and exclude others. However, they clash with the widespread understanding that economic “substantive due process” is entirely dead, buried at least since West Coast Hotel Co. v. Parrish,7 and also clash with the decisions of other federal courts that economic protectionism is a valid rational basis for upholding occupational restrictions.

Beating Rubber-Stamps into Gavels: A Fresh Look at Occupational Freedom, by Clark Neily (Institute for Justice), 126 Yale L.J. F. 304 (2016).

The number of Americans who must obtain government permission to work in their chosen vocation has been steadily rising. A recent White House report observed that “[o]ccupational licensing has grown rapidly over the past few decades” and has come to include many harmless vocations such as interior design, hair braiding, and even floristry. Today, about one quarter of American workers must obtain a government-issued license to do their job, up from less than five percent in the 1950s.

Experience shows that licensing is subject to abuse. For example, one of the Supreme Court’s first occupational-licensing cases, in 1873, involved an aspiring attorney named Myra Bradwell who was denied admission to the Illinois bar simply because she was a woman. One hundred thirty-five years later, Kim Powers saw her dreams of running an online casket emporium dashed by an Oklahoma law that gives state-licensed funeral directors the exclusive right to sell caskets.

The Tenth Circuit’s decision upholding Oklahoma’s casket-sales monopoly underscores the incoherence of modern occupational-licensing doctrine. The court explicitly approved naked favoritism as a valid basis for restricting a person’s livelihood, and noted that “while baseball may be the national pastime of the citizenry, dishing out special economic benefits to certain in-state industries remains the favored pastime of state and local governments.” The Second Circuit recently embraced that proposition despite acknowledging conflict with the Fifth, Sixth, and Ninth Circuits.

A jurisprudence that has drifted so far from the principles of fairness, regularity, and equality, such that rank favoritism may be a permissible basis for restricting a person’s livelihood, seems both problematic and unsustainable. Nevertheless, many judges remain skeptical of occupational freedom, because of both its association with the notorious case Lochner v. New York and the broader concerns it raises about judicial activism. Thus, to avoid repeating the supposed mistakes of Lochner, most courts have refused to seriously scrutinize laws that restrict people’s livelihoods, instead applying what often amounts to little more than a judicial rubber-stamp.

But several trends in constitutional scholarship and doctrine suggest that a transformation of that jurisprudence may be closer at hand than many would suppose.

Business Licensing and Constitutional Liberty, by Amanda Shanor (Ph.D. candidate, Yale), 126 Yale L.J. F. 314 (2016).

Claims that the Constitution prohibits business licensing requirements have proliferated in recent years. The U.S. Court of Appeals for the District of Columbia Circuit recently concluded that a District requirement that tour guides obtain business licenses violated the First Amendment. The Sixth Circuit likewise held that a licensing scheme for funeral directors violated due process and equal protection under the Fourteenth Amendment. These cases mark a sea change in the treatment of economic liberty claims both by the courts and in U.S. legal culture.

In this Essay, I situate debates over the constitutional treatment of business licensing schemes in larger historical context. Doing so reveals the changing treatment of these schemes to be part of a trend that goes far beyond the regulation of licensing: the Constitution is increasingly being invoked as a trump against certain types of economic regulation. My thesis is that the central arguments currently marshaled in favor of extending stringent judicial review to business licensing regulations are untenable. These lines of reasoning have no logical endpoint. Individual rights, on this view, could trump any manner of governmental regulation in favor of free-market ordering.

These business licensing cases raise deep and pressing questions about the purpose and scope of rights and constitutional judicial review more broadly today. Underlying these debates are competing conceptions of constitutional liberty. One view, perhaps the ascendant one, reflects free-market libertarian values, whereas others understand the First and Fourteenth Amendments to reflect ideals such as democratic self-governance, anti-subordination, or civic republicanism. Resolving disputes about the constitutional status of business licensing requires that we grapple with those deeper questions.

12/11/2016

Darrell Miller: Institutions and the Second Amendment
Michael Ramsey

Darrell A. H. Miller (Duke University School of Law) has posted Institutions and the Second Amendment (66 Duke Law Journal 69 (2016)) on SSRN.  Here is the abstract:      

District of Columbia v. Heller ruptured the one institution — the militia — that courts had used for centuries to implement the right to keep and bear arms. If the question was “what arms?,” one looked to the militia to find an answer; if the question was “whose arms?,” again, one looked to the militia. Heller loosened the fit between the militia and the right, causing a welter of conflict as to what institutions now facilitate and constrain the Second Amendment. This Article attempts to restructure the inquiry into Second Amendment rights by drawing from the literature on institutionalism and constitutional law.

Although the institutional turn in constitutional law has been important to free speech scholarship, religion clause scholarship, and separation of powers scholarship, no one has consciously applied institutionalism to the Second Amendment. This Article fills that gap. In so doing, it situates institutionalism within the leading methodological approaches of today: textualism, originalism, common law constitutionalism, popular constitutionalism, and pragmatism. As such, this Article aims to reach beyond Second Amendment scholars and speak more generally to debates about constitutional law and constitutional theory.

12/10/2016

Nelson Lund: Antonin Scalia and the Dilemma of Constitutional Originalism
Michael Ramsey

Nelson Lund (George Mason University Antonin Scalia Law School) has posted Antonin Scalia and the Dilemma of Constitutional Originalism (Perspectives in Political Science, Forthcoming) on SSRN.  Here is the  abstract:      

Antonin Scalia has had a very significant and healthy impact on the way people talk about American constitutional law. Before he took his seat on the Supreme Court, it was barely respectable to treat the Constitution, understood to mean what it meant to those who wrote and ratified it, as the law. Constitutional law was - as every sophisticated lawyer, jurist, and academic understood - whatever the courts said it was, and the written document had been superseded in significant part by a “living constitution” that reflected the progressive political agenda of the modern left. Thanks largely to Justice Scalia’s forceful and eloquent voice, originalism is now so respectable that even those who seek to move the law ever farther to the left frequently find it prudent to pose as expositors of the Constitution’s original meaning.

Scalia’s substantial effect on the terms of debate in constitutional law, however, is not likely to be matched by a comparable influence on the future of the law itself. His effort to alter the Supreme Court’s approach to constitutional adjudication faced serious obstacles that will continue to frustrate Justices - and observers like me - who share Scalia’s desire for a revival of respect for the written Constitution. Most obviously, political realities could easily prevent presidential appointments from producing a majority of like-minded Justices any time soon, if ever. There are, however, some more interesting obstacles that have deep historical roots. This essay explores those obstacles before considering two examples that suggest why Scalia’s originalism is unlikely to make a decisive contribution to the reformation in constitutional law that he sought.

12/09/2016

Posner and Segall's Evasion of the Sense-Reference Distinction
Chris Green

Judge Posner and Eric Segall have each recently replied (in a 4-page co-authored piece at the end of the collection here, and in a longer solo piece by Segall here) to Will Baude and Stephen Sachs's recent work on originalism (a 6-page co-authored piece in the same collection, Baude alone here, Sachs alone here and here, and a forthcoming co-authored piece here). Baude and Sachs hold that our constitutional law must "lawfully derive from the law of the founding." I have a bit of sympathy for Posner and Segall's terminological quibble; Baude and Sachs's view might more usefully be called meta-originalism, rather than originalism as such, because it can encompass those who think that we have always had a common-law, intergenerationally-authored Constitution--David Strauss, Jed Rubenfeld, or Ronald Dworkin, say. Unlike Posner and Segall, though, I think Baude and Sachs's original-law meta-originalism is both true and important.

One important flaw in Posner and Segall's recent contributions is their failure to engage with Baude and Sachs's use of the sense-reference distinction, which philosophers of language have used at least since the time of Frege to explain how linguistic categories work. I wrote at length about the distinction over ten years ago, though, as Baude and Sachs kindly note, "too few scholars have read" my work. Some philosophers have, to be sure, criticized the distinction (and others have defended it), but Posner and Segall simply ignore it. That seems "obviously wrong, yet eminently curable," in Posner's words.

The basic idea is that building cars does not, in itself, change the meaning of the word "car"--the "sense" of the word. But building cars does change something about the word "car": its "reference," or collection of things picked out by the term. So, if someone asks me how many cars there are, I need to know (a) what he means by "car" and (b) the automotive facts. Both linguistic and automotive facts change all the time, of course, but they do so in different ways and for different reasons. If we want to find out how many cars there are in America, we have to do so (paraphrasing Brown) "in the light of [cars'] full development and [their] present place in American life." Current automotive facts are essential, even if we are merely applying a word that someone spoke long ago (e.g., in verifying or falsifying a prediction long ago that someday there will be a certain number of cars in America).

My view is that original sense, but not original reference, is interpretively binding. This is how the meaning of words can be both fixed but abstract. The original sense determines a function from possible worlds to outcomes; current facts tell us what possible world we are in, which we then plug into the sense-determined function, producing an outcome. As Baude put it at p. 2356, footnoting my paper, "a word can have a fixed abstract meaning even if the specific facts that meaning points to change over time."

After quoting this statement, Segall asks incredulously at p. 40, "How can the meaning of words be simultaneously 'fixed' and 'abstract?' " But Segall does not then engage the sense-reference distinction on which Baude and I rely, but instead jumps to disputes over the interpretation-construction distinction, on which originalists have differed regarding how to deal with vagueness, ambiguity, and kindred phenomena. But vagueness is not the same thing as abstraction.  A term is "abstract," as Baude uses the term, if its reference can change without the term's meaning changing as well. On the other hand, a term is vague if it has a fuzzy, unclear boundary; these are not the same thing. I offer my own take on how to deal with vagueness and lack of clarity here and here, but it is important to see that Baude plainly does not use the interpretation-construction distinction to explain how meaning can be both fixed and abstract. The sense-reference distinction does that, whatever we think about construction and interpretation.

An appreciation for the sense-reference distinction would have prevented Posner and Segall's misreading of Brown v. Board of Education, which I paraphrased above. Posner and Segall think (at p. 110) that in stressing the need to consider the "full development" and "present place" of education, "The Court in Brown expressly rejected the idea that history mattered." But the relevance of present facts does not entail the irrelevance of historical facts. Indeed, Brown itself says that historical sources "cast some light," but "not enough."

History tells us that (as I see it) the Fourteenth Amendment bans second-class citizenship, but current facts tell us what rights are in fact given generally to citizens (what counts as "the very foundation of good citizenship," as Brown puts it) today. Building new cars does not change what it means to be a "car"; neither does building new privileges of citizens change what it means to be a privilege of citizens of the United States. To get outcomes, we need both (a) the historically-fixed function from possible worlds to outcomes and (b) a specification of which world we're in. Our need for reference-yielding current facts in (b) does not undermine our simultaneous need for historically-fixed sense in (a). 

Brian Christopher Jones & Austin Sarat: Antonin Scalia and the Cultural Life of the Law
Michael Ramsey

Brian Christopher Jones (Liverpool Hope University) and Austin Sarat (Amherst College) have posted Justices As 'Sacred Symbols': Antonin Scalia and the Cultural Life of the Law (British Journal of American Legal Studies, forthcoming (2017)) on SSRN.  Here is the abstract    

The idea of the brilliant and elegant philosopher judge has a long and romanticized history. From Sir Edward Coke, William Blackstone and Joseph Story to Oliver Wendell Holmes, Louis Brandeis and Lord Bingham, the common law is replete with this vision of judging. In this vision, judges sometimes seem to be law makers as much as faithful it interpreters. In many ways Antonin Scalia fought against this traditional vision of the philosopher judge. He disliked activist judges who imposed their idea of wisdom on elected legislatures; in fact, he trumpeted his jurisprudence for its fidelity to law and deference to the popular will. But even though Scalia fought against the romantic vision of philosopher judge, he himself became a living symbol of a judicial philosophy, a symbol so powerful that sometimes it was difficult to disentangle the judge from his jurisprudence. His status as a symbol and how he achieved his status, was much different from the route of the judges mentioned above. This paper attempts to explain how Scalia became what we call a judicial “sacred symbol”.

12/08/2016

More Commentary on the Trump Supreme Court List -- Justices Lee and Stras [with Further Update on Lee]
Michael Ramsey

At NRO, Hanna Smith (Becket Fund for Religious Liberty) makes the originalist case for nominating Justice Thomas Lee of the Utah Supreme Court: Replacing Justice Scalia: A Proven Originalist from Trump’s List.  From the core of the argument:

In his years on the Utah Supreme Court, Justice Lee has stated that judges must “implement the principles of the constitution as originally adopted because that is the very point of having a written constitution.” He has also held that “it should go without saying that our construction of a provision of the constitution must rest on the original meaning of the constitutional text.” Originalism, he writes, “is a theory that is essential to any system of government that finds its legitimacy in the will of the people as expressed in positive laws.”

In Scalia- and Thomas-like fashion, Justice Lee has insisted that “achieving outcomes that satisfy our policy preferences is not our function.” Rather, judges “are tasked . . . with deciding the cases that come before us in accordance with the rule of law — whether or not it yields an outcome we favor on policy grounds.” He has opined that “as judges we take an oath to uphold and defend the constitution,” which calls for interpreting the law based on “what it originally meant” when enacted, not on a judge’s “instincts or beliefs.”

In one important respect — his approach to judicial precedent — Justice Lee is more like Justice Thomas than like Justice Scalia. Justice Thomas (for whom Justice Lee clerked) adheres to the view that the Constitution as written trumps judicial opinions that clearly break with the Constitution. Justice Lee has repeatedly advocated for overruling precedent that is “contrary to the original meaning of the Utah constitution.”

These views are not mere talking points, but positions affirmatively staked out in Justice Lee’s judicial opinions. What you see is what you’ll get with Justice Lee – an originalist judge who will uphold the Constitution as written. He can be trusted to walk the Scalia walk because he already has, as a judge on the highest court in his state. In short, his opinions confirm that Justice Lee has a well-developed theory of judging — patterned after Justice Scalia’s – that ensures he will be a voice for the rule of law.

The post also notes that Justice Lee, like Justice Scalia, was a professor before becoming a judge; that he would make history by being the first Mormon on the U.S. Supreme Court, and that:

Nominating Justice Lee will also help unite Republicans following an acrimonious election. In his acceptance speech, Mr. Trump reached out to groups — including many conservatives — who did not support his candidacy, seeking their “help” to “unify our great country.” Nominating the brother of a prominent conservative leader who did not support Mr. Trump (Senator Mike Lee of Utah) would go a long way toward fulfilling the magnanimous spirit Mr. Trump displayed on election night.

Meanwhile, at Powerline, Scott Johnson argues for Minnesota Supreme Court Justice David Stras: A Word for David Stras.  Key points:

Justice Stras respects the role of the judiciary and the Constitution’s separation of powers. Justice Stras holds that the judiciary “does not write statutes; nor do we amend them; no matter the circumstances.” State v. Ali, 855 N.W. 2d 235, 268 (Minn. 2014) (concurring). Justice Stras’s concurrences and dissents, in particular, repeatedly emphasize that courts are bound to respect “fundamental limitations on our authority[.]” He holds that courts are to resist the temptation to encroach on legislative functions and become “a junior-varsity legislature.” In re Guardianship of Tschumy, 853 N.W.2d 728, 752-53 (Minn. 2014) (dissenting); State v. Crawley, 819 N.W.2d 94, 118 (Minn. 2012) (dissenting).

Justice Stras’s views on the role of the judiciary arise from an appreciation of constitutional separation of powers. In State v. M.D.T., 831 N.W.2d 276 (Minn. 2013), Justice Stras described in detail the strict separation of powers required by Minnesota’s Constitution and concluded that the district court abused its discretion by relying on inherent judicial authority to order relief beyond what was provided in the statute at issue.

Justice Stras’s objection to the district court order went beyond the fact that the court acted beyond its authority. Instead, Justice Stras pointed to the constitutional significance of judicial encroachment in an area where the legislature was authorized to act. Proper respect for the separation of powers is urgent as the Court addresses constitutional limitations on its own power as well as limitations on an administrative state that has undertaken the role of all three branches.

Justice Stras is an originalist and a textualist. Like the opinions by Justice Scalia, Justice Stras’s decisions are notable for a rigorous analysis of statutory and constitutional text that interprets the text as it was understood at the time of its adoption. In State v. Nelson, 842 N.W.2d 433 (Minn. 2014), Justice Stras rigorously analyzes the text of the statute text, citing multiple dictionaries. Justice Stras’s majority opinion credits the statute as written over what other judges viewed as the historical understanding and intent underlying the statute.

Perhaps the best example of Justice Stras’s originalist approach comes in United Prairie Bank v. Haugen Nutrition & Equip., LLC, 813 N.W.2d 49 (Minn. 2012). The case involved the question of whether a party seeking contractual attorney fees is entitled to a jury trial under Minnesota’s Constitution. Justice Stras first addressed the question whether a party would have been entitled to a jury based on the same theory of relief at the time Minnestoa’s Constitution was adopted and then assessed the plaintiff’s claim in light of similar theories. United Prairie Bank shows Justice Stras following Justice Scalia’s model by making the intellectual case for originalism and pushing his colleagues to apply the text of the Constitution as written.

UPDATE:  A reader sends this information -- 

For a very good exposition of [Justice Lee's] views on due process, stare decisis, and originalism, see this decision, issued Tuesday:

In the Matter of the Adoption of K.A.S (Utah S. Ct. Dec. 6, 2016), Lee dissenting.

The dissent begins: 

Parental-rights termination cases are heart-wrenching. They present problems of enormous consequence—of severance of one of the most cherished of all human bonds, with the safety and welfare of children hanging in the balance. This is a matter on which our sensitivity for justice is heightened. And for that reason I can appreciate a desire to find a way to secure the appointment of counsel in a case like this one. As a pure policy matter, I see significant upsides in assuring that a parent has the benefit of legal counsel before his legal rights are terminated.

That said, the issues before us are not policy questions. We are not legislators voting on a statute guaranteeing appointed counsel in parental-termination cases. We are judges faced with questions of law—under our law of preservation, and on matters of statutory and constitutional interpretation. And I find no basis in law for the majority’s conclusions.