Originalism and the Second Best in BrackeenWill Foster

[Ed.:  For this guest post we welcome back Will Foster, a rising senior at Columbia University.]

Last week, the Supreme Court decided Haaland v. Brackeen, a case about the constitutionality of certain provisions of the Indian Child Welfare Act (ICWA). The case involved a number of issues, but in my view the most interesting one from an originalist perspective (and the issue that divided the dissenters from the majority) was the question of Article I power. What enumerated powers, if any, authorized Congress to pass the challenged ICWA provisions? 

Much has been and will be said about various features of the opinions in this case. But what I found particularly noteworthy was how Justice Barrett’s majority opinion and the dissents of Justices Thomas and Alito grappled with the problem of the second best. This is a problem that is likely familiar to most people, even if informally. And as William Baude has noted, it is a problem that “may be especially easy to see for originalists.” One (oversimplified) way to look at the issue in Brackeen is to think of the justices as trying to optimize two variables, the coherence of their case law and the consistency of their decisions with the Constitution’s original meaning. Their most preferred outcome is clearly to optimize both -- to decide every case in a way that is perfectly originalist and fits seamlessly within the existing web of precedent. But what if they can’t do that? What’s the next-best outcome?

Justice Barrett grappled fairly explicitly with this question in Part II-C of her opinion. After cataloging some “obstacles” to the challengers’ position under existing precedent, Justice Barrett stated that when “petitioners turn to criticizing our precedent as inconsistent with the Constitution’s original meaning … they frame their arguments as if the slate were clean. More than two centuries in, it is anything but.” This is the fundamental problem the Court faced: Because petitioners did not “ask us to overrule the precedent they criticize,” the justices were faced with a request to create seemingly arbitrary exceptions to prior case law. Instead of “a theory for rationalizing this body of law,” the Court would be left with an irrational jumble. In footnote four, the majority makes this point with admirable clarity, and it is worth quoting at length: “Texas floated a theory for the first time at oral argument. It said that, taken together, our plenary power cases fall into three buckets: (1) those allowing Congress to legislate pursuant to an enumerated power, such as the Indian Commerce Clause or the Treaty Clause; (2) those allowing Congress to regulate the tribes as government entities; and (3) those allowing Congress to enact legislation that applies to federal or tribal land … According to Texas, ICWA is unconstitutional because it does not fall within any of these categories … But even if Texas’s theory is descriptively accurate, Texas offers no explanation for why Congress’s power is limited to these categories.”

This is the arbitrariness objection described above. And in one sense, what Justice Barrett said here is perfectly ordinary. As then-Professor Barrett wrote in one of her several important articles on stare decisis, the party presentation rule means that Supreme Court justices need not reach out to question the validity of precedents the parties do not ask the Court to overrule. “That rule is not hard and fast, and the Justices sometimes raise additional issues, like the matter of precedent’s validity, on their own,” Barrett wrote. “But doing so happens when a Justice wants to address the merits of precedent.” And, taking precedent as given -- as the Court was therefore entitled (if perhaps not obligated) to do -- the result reached in Brackeen was certainly plausible. The majority saw that petitioners were not urging a full return to the Constitution’s original meaning (or anything close to that), and decided that resolving the case solely based on prior doctrine was preferable to attempting a sort of awkward hybrid of precedent and original meaning.   

This is a particular way of dealing with the second-best problem, and it has much to recommend it. Yet I worry that something might be lost here, and the dissenting justices seem to have shared that concern. The difficulty is that the majority’s all-or-nothing approach -- if the Court cannot find a new comprehensive theory, it should leave the doctrine precisely as it stands -- may lead to results that drift farther and farther away from the original meaning. The overall coherence of case law is important, but so is deciding individual cases rightly. To Justice Alito, all the majority’s fretting about the general structure of Indian law was beside the point: “We need not map the outer bounds of Congress’s Indian affairs authority to hold that the challenged provisions of ICWA lie outside it … By attempting to control state judicial proceedings in a field long-recognized to be the virtually exclusive province of the States, ICWA violates the fundamental structure of our constitutional order.” There was no need, in Alito’s view, to “question the proposition that Congress has broad power to regulate Indian affairs,” as a general matter. Rather, all the Court needed to do was recognize that “in some circumstances, the powers reserved to the States inform the scope of Congress’s power,” and “governance of family relations—including marriage relationships and child custody” is among these reserved powers. To “remain faithful to our founding,” Justice Alito thought the Court must protect these reserved powers, whatever else it might have decided in other Indian law cases: “ICWA surpasses even a generous understanding of Congress’s Indian affairs authority.”

The majority found Justice Alito’s “family law carveout” peculiar. After all, there was no evidence that anyone at the Founding thought “family law is wholly exempt from federal regulation.” The majority quoted Madison’s assertion that “when the Constitution conferred a power on Congress, ‘they might exercise it, although it should interfere with the laws, or even the Constitution of the States.’” But this arguably begs the question at issue, namely, whether the power to pass ICWA was in fact “conferred … on Congress.” In Justice Alito’s telling, the fact that such a power intrudes so heavily on areas of traditional state sovereignty is very good evidence that such a power was not given to Congress. To be sure, the majority is not wrong to see the purported “constitutional carveout” for family law as a somewhat ad hoc exception to Congress’ powers. But that is not necessarily a mark against it.

To see why, consider the litigation over the Affordable Care Act’s individual mandate more than a decade ago. To many observers, the Commerce Clause arguments against the mandate were difficult to understand. Congress could already regulate so much -- why should courts draw a new line between activity and inactivity? This line seemed arbitrary and unprincipled. But as Stephen Sachs explained at the time, what was really going on was far deeper than that. “What bothers many opponents of the mandate is not that it might overstep the Holy Writ of Raich or Comstock,” he wrote. Instead, to them, “the mandate—as the apotheosis of the substantial-effects test—is a signal that Something Has Gone Wrong in our reading of the Constitution.” To be sure, “[t]he lawyers challenging the mandate aren’t asking the Court to overrule Wickard v. Filburn, or to get rid of the substantial-effects test. That’s no surprise. Lawyers don’t go into court advancing the most extreme, philosophically pure version of their theories … Courts often amend past doctrines by distinguishing prior cases on narrow, sometimes formal, grounds. That’s how doctrine usually changes over time; not by wholesale overruling, but by slow evolution and reassessment of the law.”

One of the lawyers for the mandate’s challengers, Professor Randy Barnett, had essentially the same view. He saw NFIB v. Sebelius as an example of the “gravitational force of originalism” at work, in which the Court accepted the New Deal expansions of the Commerce Clause but drew a line in the sand, in essence saying “this far and no farther.” (Josh Blackman recently made this same point about United States v. Lopez; Justice Thomas himself mentions Lopez in footnote 17 of his Brackeen dissent.) When viewed in this context, it becomes apparent that Justice Alito’s approach in Brackeen is in line with the Court’s general approach to federalism cases in recent years. To quote then-Judge Kavanaugh, one can interpret precedent “in light of and in the direction of the constitutional text and constitutional history” without jettisoning the precedent entirely. In the words of Richard Re, narrowing precedent -- a practice “that has been accepted and employed by virtually every Justice” -- “will rarely if ever result in a perfect fit between the narrowed precedent and background principles of law. Yet there is nothing remarkable about this, as it is in the nature of judicial decisionmaking to ‘work itself pure’ only gradually.”

Recall that the majority in Brackeen questioned how Texas derived its proposed “three buckets” of congressional Indian affairs power -- where are those limits in the Constitution? Justice Thomas responded that “limiting Congress’ authority to those ‘buckets’ would bring our jurisprudence closer to the powers enumerated by the text and original meaning of the Constitution … While I share the majority’s frustration with petitioners’ limited engagement with the Court’s precedents, I would recognize the contexts of those cases and limit the so-called plenary power to those contexts. Such limits would at least start us on the road back to the Constitution’s original meaning in the area of Indian law.” For Justice Thomas, like Alito, something is better than nothing, and the doctrinal jumble created by declining to extend arguably applicable precedents is a price worth paying to nudge the doctrine closer to the original meaning. The risk is that the lines will appear arbitrary, but the Court already accepts that risk in other contexts, and it is not clear why they should not do so here.

Perhaps the majority doesn’t actually disagree with any of this in principle, but simply does not see any tension between its approach and originalism here. On its face, Justice Barrett’s opinion seems agnostic as to whether any enumerated power, as originally understood, can justify ICWA. But we know that Justice Gorsuch (who joined the Court’s opinion in full) thinks ICWA is justified by the original meaning of the Indian Commerce Clause. Perhaps some or all other members of the majority agreed with that conclusion, albeit silently. (No other justice joined the lengthy historical analysis in Part II of Gorsuch’s opinion, although Justices Sotomayor and Jackson did join Part III, which summarizes some of what was said in Part II.) It is quite possible that Justice Gorsuch’s originalist analysis is right -- I have not studied the question in detail. If so, then there is no conflict at all between originalism and doctrine in this case (at least in the sense that they reach the same result), and the problem goes away. Wading into a difficult and sometimes contentious originalist debate -- one that pits Gregory Ablavsky and Justice Gorsuch against Robert Natelson and Justice Thomas -- might not make much sense if one suspects it will make no difference to the result reached by applying settled doctrine. Alternatively, and perhaps more plausibly, some of the justices in the majority may have been unsure whether to side with Gorsuch or Thomas, and therefore could have seen no warrant to hold ICWA unconstitutional based on an originalist analysis that did not yield a conclusive answer. (After all, as Barrett explained, challengers to ICWA “bear the burden of establishing ICWA’s unconstitutionality.”) If this is the case, though, it would have been helpful for the majority to explain why it felt that the history was unclear. Additionally, the Court’s opinion in Brackeen seems at times to suggest that even if the Court thought the original meaning was clearly against ICWA, the Court would still uphold the statute, at least in this case.

To be clear, for present purposes, the merits of Brackeen (or any other case) are largely beside the point. The tricky issue of originalism and the second-best is certain to recur, and it is edifying to see the justices grappling with these sorts of questions. I am not sure that there is any general solution to them, and it may be that each case requires a different analysis. Certainly, the division between the justices in Brackeen emphasizes just how thorny this issue is. But I think there is value in recognizing the debate when it occurs. The question of when to overturn precedent gets a lot of attention, with much left up to justices’ discretion. But at least there are some standards that almost all the justices accept (Justice Thomas has a different view of stare decisis, but to his credit he has explained it at some length). When considering the issue at stake in Brackeen -- how to balance the internal coherence of constitutional doctrine with the demands of the Constitution itself, when neither can be perfectly achieved or satisfied -- there are virtually no generally accepted standards at all. Perhaps I and others will be able to explore what these standards should be in future work.