Tuesday, April 20, 2021

Justice Barrett and Justice Jackson

Gerard N. Magliocca

Justice Barrett inked a book deal yesterday for a reported $2 million advance. Press reports say that the book will be about "how judges should avoid letting their decisions be shaped by personal feelings."

I assume, then, that Justice Barrett would disapprove of the following statement in a judicial opinion:

"That comprehensive and undefined presidential powers hold both practical advantages and grave dangers for the country will impress anyone who has served as legal advisor to a President in time of transition and public anxiety. While an interval of detached reflection may temper teachings of that experience, they probably are a more realistic influence on my views than the conventional materials of judicial decision which seem unduly to accentuate doctrine and legal fiction."

This is, of course, the opening of Justice Jackson's concurring opinion in Youngstown. (Wait 'till you see what he says about trying to divine the Constitution's original understanding.) I draw this comparison not to pick on Justice Barrett, but to point out that a lot of what judges say about they do or should do is at odds with what Justice Jackson's much-admired opinion in Youngstown said and did. This inconsistency will be a major theme in my book project on Justice Jackson's opinion. 


Post a Comment

Older Posts
Newer Posts