In my prior post, I assumed that interpreting judicial opinions is almost entirely a linguistic endeavor. But as with other legal texts, that isn’t quite true—or at least it doesn’t tell the whole story. Richard Re notes a subtle distinction between (i) “what [an] opinion is best read to say” and (ii) “how the opinion should be read, given an overall view of the law.” When applied by originalists, approach (ii) creates what has been called the gravitational force of originalism. In Justice Kavanaugh’s recent concurrence in Rahimi, which sought to explain his overall approach to constitutional interpretation, Kavanaugh noted that “the text, as well as pre-ratification and post-ratification history, may appropriately function as a gravitational pull on the Court’s interpretation of precedent.” He then cited a statement he made as a judge on the D.C. Circuit, one which I quoted on this blog last year: “We should resolve questions about the scope of those precedents in light of and in the direction of the constitutional text and constitutional history.”
What does it mean to interpret a particular text “in light of and in the direction of” some other factor (in this case, the original meaning of the Constitution)? One could imagine utilizing original meaning merely as a tiebreaker; if there are two equally plausible constructions of a prior precedent dealing with a constitutional issue, a judge or justice should choose the construction closer to the original meaning. (Set aside for now the second-best difficulties inherent in defining what it means to be “closer” to the original meaning.) But such a demanding “ambiguity trigger” is rarely if ever satisfied in the context of statutes, as Justice Kavanaugh has observed. And I see no reason to think the number of true 50-50 tossups is significantly higher when interpreting precedents. So to be doing any real work as a “gravitational pull,” original meaning needs to be acting as more (likely much more) than a mere tiebreaker. It instead must function as a kind of strong-form substantive canon—a heavy thumb on the scale. As Justice Barrett put it, when interpreting statutes, “a strong-form canon counsels a court to strain statutory text to advance a particular value”—meaning that “the better interpretation of a statute will not necessarily prevail.”
To be sure, we do not normally speak of substantive canons, or really any canons, in the context of interpreting judicial precedents. But there does seem to be a rough analogy between statutory substantive canons and the sorts of moves courts make when they interpret prior precedent. Richard Re recognized this in his 2014 article on precedential narrowing; as he put it, “narrowing is the second cousin” of one particular substantive canon, “the canon of constitutional avoidance.” Viewing the “gravitational pull” to which Justice Kavanaugh refers as a kind of substantive canon helps clarify what it means to interpret case law “in light of and in the direction of the constitutional text and constitutional history.”
The problem is that, at least in the statutory context, substantive canons have long been viewed with skepticism by many textualists and originalists (groups that of course overlap substantially). As Michael Rappaport put it in a recent article, “Under an originalist approach, the courts do not have the authority to protect certain values of their own choosing”—much less to do so at the expense of a statute’s text. To be sure, the tension here may well be resolvable, particularly given that many substantive canons have historical pedigrees stretching back to the Founding. (As Eli Nachmany recently observed, at least some thumb-on-the-scale substantive canons appear relatively uncontroversial today, even among the Supreme Court’s textualists.) Nevertheless, the tension remains, and it is why virtually everyone agrees that substantive canons (such as constitutional avoidance and various clear-statement rules) can only be invoked when there are multiple “reasonable,” “possible,” or “fairly possible” readings of a statute. Stated differently, there is a limit to how far the text can be stretched. And when that limit is surpassed, the court is no longer truly interpreting the statute, but instead rewriting it.
Textualists have long recognized, for example, that particularly muscular applications of the constitutional avoidance canon can bleed into outright distortion of the text—in Justice Scalia’s words, “a means of thwarting the clearly expressed intent of the legislature.” It stands to reason that a similar outcome can sometimes occur when the object of interpretation is a judicial opinion. And indeed, justices sometimes explicitly accuse their colleagues of adopting a “strained reading” of controlling precedent instead of “outright admitting that it is irreconcilable” with a correct view of the law. Without expressing a view on any particular case, I will simply observe that the interpretation of judicial precedents tends to involve a certain degree of creativity—one which goes well beyond what would be considered acceptable in interpreting other legal texts. That is not to say reasoning from case law is entirely unconstrained. But the interpretation of precedents often looks something like what Frederick Schauer has called “unoriginal textualism.” As long as there is some way to reconcile an opinion’s “thin” semantic content with one’s argument, that is treated as good enough; the precedent has been followed. But this approach is in stark contrast with how originalists interpret other legal documents, including the Constitution.
One natural explanation for this disparate treatment is that judicial opinions are simply not binding law in the same way as many other legal texts. Judges frequently recognize that “[j]udicial opinions are not statutes; they resolve only the situations presented for decision.” That principle has deep historical roots, as Justice Gorsuch explained in his recent concurrence in Loper Bright. Gorsuch quoted Chief Justice Marshall’s oft-cited remark that “general expressions, in every opinion, are to be taken in connection with the case in which those expressions are used.” And Gorsuch also noted that, as late as the mid-19th century, “a Justice writing the Court’s majority opinion would generally work alone and present his work orally and in summary form to his colleagues at conference, which meant that other Justices often did not even review the opinion prior to publication.” Of course, this practice would have made little sense if the precise wording of the opinion were understood to hold great significance. Thus, Justice Gorsuch explained that “a single judicial opinion may resolve a ‘case or controversy,’ and in so doing it may make ‘effective law’ for the parties, but it does not legislate for the whole of the country and is not to be confused with laws that do.” This view of stare decisis helps explain why originalists who are otherwise skeptical of substantive canons (or at least demand some justification for their use) may be more willing to accept the use of de facto substantive canons—such as the “gravitational pull” of the Constitution’s original meaning—in interpreting a precedent’s text.
Justice Gorsuch provided a similar explanation for the Court’s treatment of precedent in SEC v. Jarkesy. As Michael Showalter observes, the majority in Jarkesy narrowly read prior case law in an apparent effort to “pull its jurisprudence toward original understanding.” While the dissent protested that the majority’s reading of Atlas Roofing was implausibly narrow, Gorsuch responded in his concurrence that the Court’s approach was “neither unusual nor at odds with stare decisis” because “loose language found in a prior judicial opinion” need not be given its “broadest possible construction.”
To a certain extent, this approach appears uncontroversial. For example, general statements of interpretive methodology—no matter how categorical, and even if they form a core part of an opinion’s reasoning—are typically not considered binding by the Supreme Court. A single precedent doesn’t operate as a sort of field preemption of an entire area of law, but leaves space open for further evolution; a justice can’t close off broad swaths of doctrine by writing a really broad opinion.
Yet if this is how stare decisis is supposed to work, practice has not entirely caught up to principle. Judges and justices of all stripes continue to spill considerable ink parsing specific phrases from case law, in a way that is not so dissimilar from statutory or constitutional interpretation. Perhaps a more consistent and coherent approach to precedent would be to dispense with this sort of close textual analysis altogether. Such an approach would not be unheard of. At the time of the Founding, the binding “holding was deduced by reasoning from the facts and the outcome of the case rather than by analysis of the text.” (It could hardly have been otherwise; in prominent early Supreme Court cases like Chisholm v. Georgia, “opinions were delivered seriatim and orally, sometimes without a prepared text or notes.”) But that approach comes with dangers of its own, and I am not aware of any modern justice that has advocated a wholesale return to that old model, which would likely leave considerable open space to be filled by original meaning. (The more narrowly one views the scope of precedent, the more discretion is left available to apply one’s first-order views of the law.)
For now, as discussed above, I think the best way to understand the role of originalism’s “gravitational pull” is to see it as a very strong substantive canon. The original meaning of the Constitution cannot be used to override the clear and specific teachings of precedent unless the precedent is formally overruled. But any hint of ambiguity in a prior opinion—however slight—is enough to open the door to application of what might be called the “gravitational force canon.” And make no mistake: the ambiguity trigger is set much lower here (and thus is much easier to satisfy) than in the case of statutes, with even seemingly crystal-clear language in a judicial opinion being poked and prodded for any flicker of uncertainty or distinguishability.
As with ambiguity-dependent substantive canons used in interpreting statutes, the threshold clarity determination does a lot of work: The extent to which a precedent clearly resolves a particular matter turns on how one defines what is sufficiently “clear.” And the line between narrowly reading (or declining to extend) precedent and flat-out disobeying it is often in the eye of the beholder. (Think of Justice Alito’s pithy admonition in his dissent in Carpenter v. United States that “applying a categorical rule categorically does not ‘extend’ precedent.”) So while it is easy to say that precedent should be interpreted “in light of” original meaning, it is much harder to articulate precisely what that means in practice. The real question is not whether originalism exerts a gravitational force, but how powerful that force is.
