Kopf: Federal District Judges Should Keep the Hell Away From “Originalism”

Modern day “originalism” is a method (in my view, a narrow tool and not an expansive religion) of understanding the Constitution. No longer pursuing the fool’s errand of attempting to ascertain “original intent,” the modern-day originalist judge looks to the ordinary public meaning of the words of the Constitution at or about the time of the Founding to make decisions about the lives of litigants. This notion has within it an effort to understand the structure of our Constitution with reference to the writings of the Founders and the ordinary public meaning of the words they used. OK, the table has now been set.

While I am not a legal historian, I know something about legal history. I have long served as Chairman of the Board of the Historical Society of the United States Courts in the Eighth Circuit. In that capacity I have come to know and deeply appreciate distinguished (and always humble) legal historians such as Jeffrey Morris, John Wunder and Mark Scherer. These fellows have law degrees and PhD degrees in history. One of their history books has even been dedicated to me. Forgive the self-promotion, but it has a point beyond merely massaging my massive ego.

Now I turn to the essay that caught my eye and prompted this response. See How Originalism Changes Legal Analysis by law professor John O. McGinnis, in Law and Liberty. Frankly, it shocked me because it is nothing short of revolutionary when comes to federal district judges.

Here’s the backstory:

In Collins v. Mnuchin, the Fifth Circuit, sitting en banc, advanced the concept of the unitary executive by holding that the structure of the Federal Housing Finance Agency (FHFA) was unconstitutional, because its director did not serve at the pleasure of the President. The opinion is very important for showing how lower court judges should address precedent in tension with their view of the original meaning of the Constitution—in this case, that Article II vests the entire executive power in the President and thus gives him control over agencies exercising executive functions. Led by judges recently appointed by President Trump, the Fifth Circuit is asserting that the original meaning should cabin Supreme Court precedent averse to original meaning. That is, such precedent should control the outcome of a case when it is directly on point, but should be narrowly read.

Id. (Emphasis added.)

McGinnis makes his point clearly and without the slightest qualification. He asserts,

Conventional legal analysis in high stakes constitutional cases looks nothing like it did a generation ago. At that time it could be fairly said that Supreme Court precedents were all important. Thus, briefs that emphasized original meaning were a waste of time. But today no lawyer can afford to ignore original meaning, even in areas where the Supreme Court has rendered many non-originalist decisions and even in the lower courts. The essential nature of law is changing as originalism meaning takes precedence over precedent.

Id. (Emphasis added.)

At least in this post, I don’t care to address how appellate judges ought to rule. Indeed, I don’t care one whit about how the Fifth Circuit reached the decision that McGinnis describes as his launching point. I don’t care about the outcome of that case either. But I do care, and deeply so, about the thesis that McGinnis presents insofar as it is applicable to federal district judges.

When it comes to federal district judges, I have two problems with the argument that McGinnis makes. One is practical. The other is theoretical.

As for the practical, McGinnis does not appreciate that the great majority of federal district judges have little or no training as legal historians. They are simply not trained to engage in the exegesis that McGinnis’ assumes that federal district judges would be required to engage in should it be true that “originalism . . . takes precedence over precedent.”

Now you, the sophisticated reader, may respond in the following way. You may say that McGinnis was only speaking for appellate judges. If so, then his argument is far too narrow. After all, somebody must make the first decision that appellate judges review. Even if he wasn’t thinking of federal district judges, he should have. We are not potted plants. And, as a group, I argue that we are simply not up to the task. We run assembly lines that, because of the press of business, require us to spit out decisions as fast as we can. We resolve disputes using conventional methods. Next case!

I would argue that same practical point for most of the lawyers who appear before us. Maybe someday trial lawyers will be trained as “originalists,” although I doubt it. Except for a few, if you asked most lawyers to direct their pleadings, arguments and briefs to originalism, they would fail. At the level of the district courts, there are simply not enough trial practitioners with training as serious originalists to form a critical mass.

And I pray that the Gods will save me and my colleagues from appellate lawyers who parachute in to try cases. They are like ducks out of water, and most think the Federal Rules of Evidence are far too mundane to master. (It is, however, great fun to pimp them around.)

There is yet another practical objection. Very few cases come before the federal district courts that require, or are suited to, the application of originalism. So, federal district judges simply lack that day in, and day out experience to grapple with the ordinary public meaning of the text of the Constitution. If practice makes perfect, we don’t have enough cases calling for an understanding of originalism to perfect that trade, assuming the doubtful proposition that we have the nascent ability in the first place.

Let me now turn to my primary objection.  “[O]riginalism . . . takes precedence over precedent.” Really? Who says? Certainly not the Supreme Court.

Take the case of Hutto v. Davis, 454 US 370 (1982) (summarily reversing in per curiam opinion the Fourth Circuit, sitting en banc, who affirmed the grant of a writ of habeas corpus by the district court on Eighth Amendment grounds for a prisoner who had been given 40 years in prison for 9 ounces of marijuana). The Supreme Court chastised the Fourth Circuit for failing to follow precedent.

The Court said:

[T]he Court of Appeals could be viewed as having ignored, consciously or unconsciously, the hierarchy of the federal court system created by the Constitution and Congress. Admittedly, the Members of this Court decide cases “by virtue of their commissions, not their competence.” And arguments may be made one way or the other whether the present case is distinguishable, except as to its facts, from [the prior decision] Rummel. But unless we wish anarchy to prevail within the federal judicial system, a precedent of this Court must be followed by the lower federal courts no matter how misguided the judges of those courts may think it to be.

Id. at 374-375. (Emphasis added).

As I have argued before[i], this means we district judges follow the precedents of the Supreme Court (and the Courts of Appeal) without guile. We don’t look for holes in reasoning. We don’t try to wiggle out from precedents that we detest. We don’t look for the “original public meaning” that was ignored or overlooked by the Supreme Court. We simply apply the precedents in good faith. No matter the value one places on originalism, to the district judge, precedent does and should take precedence over originalism.

Richard G. Kopf
Senior United States District Judge (Nebraska)

[i] This link also has a certain irony to it. For the rest of the story, see here and here.

18 thoughts on “Kopf: Federal District Judges Should Keep the Hell Away From “Originalism”

  1. B. McLeod

    What McGinnis says only really makes sense at the Supreme Court level, where the justices are allowed to make things upas they go along. Lower courts should follow precedent until the Supreme Court itself makes up something different.

    1. Richard Kopf

      B. McLeod,

      Let me add also that following precedent can be fun too.

      Buck v. Bell has never been overruled. So, I can still cite Oliver Wendell Holmes for the proposition that: “Three generations of imbeciles are enough.” Ollie had an unmatched way with words.

      All the best.


    2. Robert A. McReynolds

      I disagree. The lower courts can take these opportunities to push–for lack of a better word–SCOTUS to adopt the reasoning behind their legal opinions. If memory serves this is how John Roberts came up with his majority opinion in the Obamacare Case. He took the minority opinion of one Brett Kavanaugh and ran with it. I also think that this is how many of the cases in the Civil Rights Era were pushed a certain direction. People were taking the dissent from Plessy and changing the sentiments at the lower court levels, which finally won over a majority of the SCOTUS.

      1. SHG

        I think you raise an important point. While precedent matters for the sake of legal stability, a little nudge against it can end up moving the law to where it needs to be. And if the nudge is deemed to be wrong, it gets reversed.

        1. Richard Kopf


          Your nudge, like my mileage, may vary.

          More seriously, when it comes to the third tier toilet, it is ultimately a matter of judgment. You certainly have it, and perhaps Mr. McReynolds does too. But I have been in this business long enough to seriously doubt whether I do. Thus, I tend to view my proper role as a district judge to be quite limited. I’d rather be reversed for being too cautious rather than reversed for being insufficiently cautious.

          I could go on and on about this, but ultimately it is my opinion that a “weak” federal district judge can do less harm than a “strong” one. Or as my pal Ollie once put it, “I always say, as you know, that if my fellow citizens want to go to Hell I will help them. It’s my job.”

          All the best.


            1. Richard Kopf


              Wrong question. The right question is “what is my proper role?”

              You and Judge Jack Weinstein, one of the greatest district judges of all times, and you, who I esteem most highly, are concerned with justice. I am concerned (mostly) with law (and the proper role of judges in a democratic republic).

              All the best.


  2. MonitorsMost

    “If a precedent of this Court has direct application in a case, yet appears to rest on reasons rejected in some other line of decisions, the Court of Appeals should follow the case which directly controls, leaving it up to this Court the prerogative of overruling its own decisions.” Rodriguez de Quijas vs. Shearson/American Exp., Inc., 490 U.S. 477, 484 (1989).

    You’ve been told directly how to handle this. Do what you’re told. It sucks that SCOTUS won’t keep its end of the bargain and explicitly overrule cases as opposed to faux distinctions and “limiting cases to their precise circumstances.” You have my sympathies. But that’s SCOTUS’ prerogative. It doesn’t excuse you’re non-compliance.

    1. Richard Kopf


      I agree. Thus, I hope the use of “you’ve” and “you” and “you’re” in the comment refers to some other moron. While I admit to being a moron, it is not rocket science to do what one had been told to do. Even a moron can do it.

      All the best.


      PS While I am thinking about it, for those who are aficionados of original public meaning as the be-all and end-all I love to remind them that at one time “awful” and “awesome” were synonymous.

  3. Andrew Garland

    I’m not a lawyer. Is the following summary wrong?

    We judges don’t know what the Constitution or statute law “really” means. Especially, we don’t know about the old stuff. But, we get along by comparing the fine points of one case to another and ruling the same way as the last time. We may be wrong, but at least we are sort-of consistent.

    The Supreme Court doesn’t know either, but occasionally will rule on something in a surprising way. However surprised, we all follow that new reasoning. It isn’t our role to question.

    Are judges wise analysts, or merely detailed bureaucrats? Does government care? What stops a slow (or fast) decline in standards, such as happened to Rome?

    1. Richard Kopf


      I have absolutely no responsibility for the rise and fall of Rome. Sorta consistent is correct. Some judges do old stuff. Most judges are just old. That makes a difference, I think.

      By the way, you are very perceptive. All the best.


      1. SHG

        I struggled with whether to post or trash AG’s comment, wondering how you would deal with it. Your subtlety suggests I made the right call.

  4. Jardinero1

    Whenever I see the word anarchy, I wonder if the speaker or the author really means anarchy or means chaos but doesn’t know the difference. Broadly speaking, anarchy is the opposite of hierarchy. Anarchy is the reduction or destruction of the social or legally enforced levels in society. Anarchic systems are quite orderly, because they are flat, and the herd effect keeps each piece in its place. The entire animal kingdom, exclusive of certain primates is anarchic. Pre-technological humans functioned nearly in a state of anarchy. There were very few levels between the lowest member of a tribal group and the highest. But chaos is something else. Chaos is the absence of order. This brings us to the Supreme Court in Hutto v Davis. When the authors wrote, “But unless we wish anarchy to prevail within the federal judicial system…”; did they mean a reduction in the levels of the judicial system ; or did they mean a reduction of order in the judicial system? If the latter, they should have written chaos.

    1. Richard Kopf


      I am just a district judge. But, if I were to guess I think anarchy is the right word choice when speaking of a judicial hierarchy. Interesting point you make, however.

      All the best.


      1. Jardinero1

        I was adding an additional wrinkle to your point. What I was hinting at was, how can we trust judges, especially the judges of the Supreme Court, to use “the ordinary public meaning of the words of the Constitution at or about the time of the Founding to make decisions”, if they can’t correctly utilize the ordinary public meanings of words in contemporary usage?

Comments are closed.