Happy Friday, and welcome to another roundup of the week’s news about the judiciary. This week, Judge Amul Thapar of the Sixth Circuit shared his views on challenges to applying originalism in cases at the trial-court level, and how to overcome the roadblocks. Plus, in a panel on cruel and unusual punishment, state trial court judges discussed whether state courts are too often deferring to U.S. Supreme Court’ precedent.
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Originalism in Trial Courts
When sitting on a Kentucky federal trial court, now-Sixth Circuit Judge Amul Thapar said he saw an opportunity in at least one case to apply originalism to his decision-making process.
The case dealt with the plaintiff’s right to a jury trial on breach of fiduciary duty and gross negligence claims, and Thapar said his chambers ended up researching Founding-era sources to help in comparing the nature of the claims at hand to 18th-century actions in English courts.
“This was not easy, especially with trials and sentencings going on,” Thapar said. “But I had two advantages that most district judges don’t. I had clerks well versed in originalism, who were committed to working day and night to figuring it out, and I had excellent lawyers who were willing to chip in and do the necessary research.”
At a Heritage Foundation talk on Thursday, Thapar talked about the challenges to applying originalism in cases in district courts and how appellate judges can make it easier. It’s an issue that has taken center stage after the U.S. Supreme Court’s decision in New York State Rifle & Pistol Association Inc. v. Bruen, which requires courts to evaluate the constitutionality of modern gun laws by comparing them to historical analogues.
U.S. district court judges have busier dockets than appellate courts, which makes the required research more difficult to get done and less help from attorneys trained to make originalist arguments, Thapar said. He pointed out that the U.S. Supreme Court received more than 80 amicus briefs in deciding Bruen, but trial courts don’t typically see that high volume of amicus briefs.
“Everyone here knows doing originalism is no easy task, and leaving district judges to do it alone would be impossible,” he said. “To be originalist judges, you must boast the meaning of a provision of the Constitution at the time of the founding. This raises a host of questions: Where to start researching? What sources are most probative? What years are most relevant?”
Originalist arguments are sometimes flagged in a case but not effectively briefed, Thapar said. In those instances, judges should consider asking for supplemental briefing with specific questions from the parties and amicus briefs from the broader legal community via an order, he added.
And Thapar said appellate courts play a role, too.
“Until the broader legal profession catches up, appellate judges need to spend more time trying to make life easier for the district courts,” Thapar said. “How? By distilling doctrines and rules for district judges to follow within the constraints of Supreme Court precedent and the Constitution’s original meaning.”
He pointed to a Sixth Circuit decision finding the federal felon-in-possession-of-a-gun statute constitutional under the history-and-tradition test. In the circuit’s August opinion, the panel said that governments in England and colonial America barred people considered dangerous from possessing firearms, and Thapar said the panel laid out certain categories of offenses that more strongly suggest someone is dangerous.
“The idea was to produce an opinion that was faithful to the Constitution’s original meaning and Supreme Court precedent, while also being straightforward for district courts to apply,” Thapar said.
Are State Courts Giving Too Much Deference to SCOTUS?
Goodwin Liu. Photo: Jason Doiy/ALM
State courts are sometimes reluctant to diverge from federal precedents despite the potential for conducting independent analysis, state supreme court jurists said Thursday.
At a symposium on how state constitutions can address excessive criminal sentences, California Supreme Court Justice Goodwin Liu said state judges should approach issues with a mindset of independence from U.S. Supreme Court caselaw.
“The U.S. Supreme Court case law, of course, looms very large,” Liu said.
“Most of the things that come up that don’t have very state-specific language or history in particular,” he added. “The fact is that the U.S. Supreme Court has just written a lot about these things. So naturally, judges gravitate to where they find useful things to read.”
But “I don’t think that we’re doing our jobs quite right if we are approaching it with deference, because what we are paid to do is interpret this state constitution, not delegate that role necessarily to another body,” Liu said.
Rowan D. Wilson, chief judge of New York’s top court, said lawyers also often rely too heavily on federal case law.
“There’s, I think, a lot of room for litigants to think carefully about state constitutions,” said Wilson, of the New York Court of Appeals. “I frequently remind people that we don’t get a Constitution before the United States existed and it isn’t clear that we ought to be following in lockstep.”
What We’re Reading
>> Mass. Appellate Court Chief Justice Nominee Discusses AI, Mentoring and Hybrid Work: Associate Justice Amy L. Blake, who has served on the bench for the past decade, was nominated by Gov. Maura Healey last month to be the first woman to lead the appellate division following the recent retirement of Chief Justice Mark Green. On Wednesday, the Governor’s Council heard testimony from colleagues voicing their support, and councilors posed questions about Blake’s strategic plans in an ever-changing legal landscape. [Law.com]
>> Biden Nominates 2 to Southern California District Courts: In what may be his final judicial nominees in California, President Joe Biden on Wednesday chose a magistrate and a state court judge to serve on the federal bench in Southern California. [Law.com]
>> ‘Clear Abuse of Discretion’: 9th Circuit Says Judge Should Have Recused From Death Row Inmate’s Lawsuit: “U.S. District Judge Amanda Brailsford should have recused from a death row inmate’s lawsuit over alleged prosecutorial misconduct due to the Idaho judge’s friendship with a prosecutor named in the complaint, a federal appeals court ruled Wednesday.” [Law.com]