The Lawyerly Virtues
In Praise of Justices Kagan and Barrett
1
Some justices display what I am going to call the lawyerly virtues.
Such justices are closely attentive to the legal materials. They see both sides. Their opinions have a kind of density. They are careful, on principle. They do not miss a trick. They do not caricature anyone or anything. They are not ideological; you read their opinions and you do not know anything about their politics. They are usually low-key. They show a tendency to understatement. They are reluctant to pronounce broadly. They are never cheap. If they go for the jugular (and they sometimes do), it is more in sadness than in anger. If they are funny, their humor tends to be warm. If they strike out, they pull their punches. They avoid ad hominem arguments. They show a tendency toward judicial minimalism, that is, a focus on the particular issues in the case, and a reluctance to make big, unnecessary claims.
At his best, Justice Louis Brandeis displayed the lawyerly virtues. At his worst, Justice Oliver Wendell Holmes, Jr., did not. In my view, Justice Hugo Black often did not display the lawyerly virtues. Chief Justice Rehnquist and Justice Souter often displayed those virtues.
2
In the tariffs case, Justice Kagan earns Olympic gold in the practice of the lawyerly virtues. She objects to the use of the heavy artillery: “The use of a clear-statement rule here is unnecessary because ordinary principles of statutory interpretation lead to the same result.” Her relatively brief opinion is packed with clear, specific (and powerful) arguments: “Combine the verbs and objects in all possible ways, and the statute authorizes 99 actions a President can take to address a foreign threat. And exactly none of the other 98 involves raising revenues.”
And so: “IEEPA gives the President significant authority over transactions involving foreign property, including the importation of goods. But in that generous delegation, one power is conspicuously missing. Nothing in IEEPA’s text, nor anything in its context, enables the President to unilaterally impose tariffs.”
Okay then.
A lot of people, from diverse perspectives, are now saying, privately and publicly, what is increasingly clear: Justice Kagan ranks among the sharpest, the most precise, and the most careful thinkers who have ever served on the Supreme Court of the United States. A key reason is that she embodies the lawyerly virtues.
3
In the tariffs case, Justice Barrett wrote in part to explain her vote, and in (larger?) part to respond to an exceedingly lengthy and detailed (and occasionally ill-tempered) concurring opinion by Justice Gorsuch, who went out of his way to attack her view of the Major Questions Doctrine. Justice Gorsuch likes the doctrine. (He might like it almost as much as I like my Labrador Retrievers, which is really saying something.) He believes that the doctrine is a “substantive canon,” rooted in the separation of powers, and requiring Congress to speak clearly if it wishes to grant transformative or massive power to the executive branch.
Justice Barrett too likes the MQD, but on more modest grounds. In her view, it is a tool of interpretation, designed to elicit congressional instructions. To Justice Gorsuch, she responds, “Strong-form substantive canons—canons instructing a judge to adopt ‘an inferior-but-tenable reading’—veer beyond interpretation and into policymaking.”
She doesn’t like that. Instead she likes this: “Because Article I grants all legislative powers to Congress, the reasonable interpreter would expect Congress ‘to make the big-time policy calls itself, rather than pawning them off to another branch.’”
True, it’s fair to wonder about the nature and the size of the difference between Justice Gorsuch and Justice Barrett. What I want to emphasize here is that Justice Barrett is a committed practitioner of the lawyerly virtues. She is careful and precise. She is fair to opposing views. She isn’t cheap or rhetorical. She is exacting and sharp. Her opinions have an impressive density, that is, they grapple with specifics. If you read her opinions, you are unlikely to know a thing about her political views.
4
A long time ago, Justice William O. Douglas was widely quoted, and many people admired him. Whether you admire him or not, he often failed to display the lawyerly virtues. Those who offer the loudest or most soaring pronouncements often get the headlines and the news stories. And there is certainly a place for such pronouncements.
Still, we underrate the lawyerly virtues. They are a big part of what holds our nation, and our law, together.