"Equal Right to the Poor"
By law, federal judges must swear or affirm that they will “do equal right to the poor and to the rich.” This frequently overlooked oath, which I call the “equal right principle,” has historical roots dating back to the Bible and entered US law in a statute passed by the First Congress. Today, the equal right principle is often understood to require only that judges faithfully apply other laws. But that reading, like the idea that the rich and poor are equally barred from sleeping under bridges, is questionable in light of the equal right principle’s text, context, and history.
This Article argues that the equal right principle supplies at least a plausible basis for federal judges to consider substantive economic equality when implementing underdetermined sources of law. There are many implications. For example, the equal right principle suggests that federal courts may legitimately limit the poor’s disadvantages in the adjudicative and legislative processes by expanding counsel rights and interpreting statutes with an eye toward economically vulnerable groups. The equal right principle should also inform what qualifies as a compelling or legitimate governmental interest within campaign finance jurisprudence, as well as whether to implement “underenforced” equal protection principles.
More broadly, the equal right principle should play a more central role in constitutional culture. The United States is unusual in that its fundamental law is relatively silent on issues of economic equality. The equal right principle can fill that void by providing a platform for legal and public deliberation over issues of wealth inequality. Through judicial confirmation hearings and other forms of public contestation, the equal right principle can help to specify federal judges’ legal and moral commitments toward the poor.
Each justice or judge of the United States shall take the following oath or affirmation before performing the duties of his office: “I, ______, do solemnly swear (or affirm) that I will administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent upon me as ___ under the Constitution and laws of the United States. So help me God.”1
28 USC § 453.
During the confirmation hearings for then-Judge John Roberts, Senator Richard Durbin asked about economic equality. “Would you at least concede,” Durbin asked, “that you would take into consideration that in our system of justice the race goes to the swift, and the swift are those with the resources, the money, the lawyers, the power in the system?”2
See Nomination of John G. Roberts Jr to Be Chief Justice of the United States, Hearing before the Senate Committee on the Judiciary, 109th Cong, 1st Sess 448 (2005) (“Roberts Hearings”). Roberts also referred to the phrase “Equal Justice Under Law.” See notes 233–34 and accompanying text.
Roberts Hearings, 109th Cong, 1st Sess at 448–49 (cited in note 2).
Id at 449.
Roberts was referring to the statutory oath of office taken by every federal judge.5
See id at 448–49.
1 Stat 73.
Judiciary Act of 1789 § 8, 1 Stat at 76, 28 USC § 453.
Federal judges also take the general federal oath to “support and defend the Constitution.” 5 USC § 
3331.
The Book of Oaths and the Several Forms Thereof, Both Ancient and Modern 176 (1689). See also Part I.B.
See Part I.A. See also Alvin K. Hellerstein, The Influence of a Jewish Education and Jewish Values on a Jewish Judge, 29 Touro L Rev 517, 525 (2013) (noting that the federal judicial oath “resonates Biblically”).
What does this evocative oath mean? On its face, the command to “do equal right to the poor and to the rich” has several components. Its reference to “equal right” connotes some form of impartial justice, or fair treatment with respect to legal decision-making.11
See notes 91–92 and accompanying text.
To the extent that the equal right principle requires a working definition of “the poor” and “the rich,” other sources of federal law supply useful benchmarks. See, for example, San Antonio Independent School District v Rodriguez, 411 US 1, 19–20 (1973) (identifying the poor as those who “because of their impecunity [ ] were completely unable to pay for some desired benefit, and as a consequence, they sustained an absolute deprivation of a meaningful opportunity to enjoy that benefit”); US Department of Health and Human Services, U.S. Federal Poverty Guidelines Used to Determine Financial Eligibility for Certain Federal Programs (Jan 26, 2017), archived at http://perma.cc/LR6J-YL46.
See Aviam Soifer, Law and the Company We Keep 134, 167 (Harvard 1995).
The first broad approach emphasizes formal equality. A weak version of formal equality would assert a straightforward directive: federal judges must apply other laws without regard to disparities in wealth. In other words, federal judges should simply follow separate sources of law, wherever they lead.14
See, for example, Patterson v McLean Credit Union, 485 US 617, 619 (1988) (per curiam) (interpreting the equal right principle as requiring that the Court treat all litigants equally, without regard to the worthiness of the litigant in terms of extralegal criteria), which is discussed in Part III.B. See also Original Great American Chocolate Chip Cookie Co v River Valley Cookies, Ltd, 970 F2d 273, 282 (7th Cir 1992) (Posner) (noting “the judicial oath, which, echoing Deuteronomy, requires judges to judge ‘without respect to persons,’” and arguing that “[t]he idea that favoring one side or the other in a class of contract disputes can redistribute wealth is one of the most persistent illusions of judicial power”); West v Louisiana, 478 F2d 1026, 1033 (5th Cir 1973) (“To ‘administer justice without respect to persons, and do equal right to the poor and to the rich’ we must apply the same standard, whether counsel be court-appointed or privately retained.”), quoting 28 USC § 453.
See 28 USC § 453. See also 5 USC § 3331 (general federal oath).
See notes 157–59, 249–54.
See, for example, Erickson v Pardus, 551 US 89, 94 (2007) (“A document filed pro se is ‘to be liberally construed.’”), quoting Estelle v Gamble, 429 US 97, 106 (1976); 28 USC § 1915 (outlining procedures for in forma pauperis filings).
On the second broad approach, the equal right principle might obligate federal judges to foster some measure of substantive equality by taking account of economic disparities. This second approach is really a cluster of related approaches, as there are many ways of defining and implementing substantive economic equality. The equal right principle might demand greater counsel rights, so that the judicial process itself does not unduly contribute to economic inequality or compound its effects.18
See Part III.A.
See Part III.B. This suggestion requires a definition of “the poor,” perhaps drawn from federal law. See note 12.
See Parts III.C–D.
See Part III.C.
See Lawrence Gene Sager, Fair Measure: The Legal Status of Underenforced Constitutional Norms, 91 Harv L Rev 1212, 1218 (1978) (arguing that Rodriguez rested on “arguments which support the underenforcement of the equal protection clause by the federal courts”).
See, for example, Griffin v Illinois, 351 US 12, 16–19 (1956) (Black) (plurality) (citing a biblical version of the equal right principle in holding that “[d]estitute defendants must be afforded as adequate appellate review as defendants who have money enough to buy transcripts”); United States v Cilins, 2013 WL 3802012, *3 (SDNY) (concluding that the equal right principle “is violated if a defendant, who is a serious risk of flight . . . is permitted to buy his way out of detention”), citing 28 USC § 453; Williams-Yulee v Florida Bar, 135 S Ct 1656, 1666 (2015) (quoting the equal right principle while upholding a state rule prohibiting judicial candidates from personally soliciting campaign funds).
This Article explores the possibility that the federal judicial oath calls for some measure of substantive economic equality. While barring group favoritism, the federal judicial oath may demand consideration of economic disparities that threaten justice or “equal right.” This basic approach is at least defensible under conventional principles of statutory interpretation.24
See Part II.A.
See notes 49, 57–61, and accompanying text.
Moreover, confirmation hearings and other forms of public contestation might specify the equal right principle’s meaning. The equal right principle is a promise as well as a statute, and the meaning of a promise generally depends on how its speaker and audience understand it.26
See Part II.B.
See notes 2–4 and accompanying text. See also, for example, Nomination of Elena Kagan to Be an Associate Justice of the Supreme Court of the United States, Hearing before the Senate Committee on the Judiciary, 111th Cong, 2d Sess 231 (2010) (“Kagan Hearings”); Nomination of Judge Sandra Day O’Connor of Arizona to Serve as an Associate Justice of the Supreme Court of the United States, Hearings before the Senate Committee on the Judiciary, 97th Cong, 1st Sess 57–58 (1981) (“O’Connor Hearings”).
Whether viewed as a statute or a promise, the equal right principle offers a distinctive way of addressing the institutional and moral position of federal judges within a constitutional system characterized by economic inequality. As argued below, the equal right principle operates in tandem with federal judges’ more general oath to adhere to law; therefore, the equal right principle is best understood not as a basis for overriding clear legal rules, but rather as an interpretive aid that should shape jurists’ implementation of other laws.28
Scholars have used the term “interstitial” to describe certain judicial efforts to enforce economic rights, particularly by providing that legislatively constructed benefits programs do not engage in unjustifiable wealth discrimination. See, for example, Goodwin Liu, Rethinking Constitutional Welfare Rights, 61 Stan L Rev 203, 215, 244–45 (2008); Laurence H. Tribe, Unraveling National League of Cities: The New Federalism and Affirmative Rights to Essential Government Services, 90 Harv L Rev 1065, 1089–90 (1977); Frank I. Michelman, In Pursuit of Constitutional Welfare Rights: One View of Rawls’ Theory of Justice, 121 U Pa L Rev 962, 1013–15 (1973). Here, I use “interstitial” more broadly to mean an interpretive principle that guides judges in areas of legal underdeterminacy.
For leading critiques of constitutional welfare rights, including on grounds of unintended consequences and judicial incompetence on matters of economic policy, see Frank B. Cross, The Error of Positive Rights, 48 UCLA L Rev 857, 902–05, 910–12 (2001); Henry Paul Monaghan, The Constitution Goes to Harvard, 13 Harv CR–CL L Rev 117, 118–20, 128 (1978); Ralph K. Winter Jr, Poverty, Economic Equality, and the Equal Protection Clause, 1972 S Ct Rev 41, 43, 93–97. Much of this literature takes aim at proposals to achieve wealth “redistribution,” rather than equal right.
See, for example, Zachary Liscow, Note, Reducing Inequality on the Cheap: When Legal Rule Design Should Incorporate Equity as Well as Efficiency, 123 Yale L J 2478, 2483–85 (2014).
See, for example, Frank I. Michelman, The Supreme Court 1968 Term—Foreword: On Protecting the Poor through the Fourteenth Amendment, 83 Harv L Rev 7, 9 (1969). For a theory built on republican government, see Jon D. Michaels, Note, To Promote the General Welfare: The Republican Imperative to Enhance Citizenship Welfare Rights, 111 Yale L J 1457, 1459–60, 1498 (2002). For more discussion of the evolving scholarly treatment of poverty rights during the last fifty years, see generally Mark A. Graber, The Clintonification of American Law: Abortion, Welfare, and Liberal Constitutional Theory, 58 Ohio St L J 731 (1997).
The best critics of constitutionalizing economic equality recognize that some accommodation for the poor may be practicable. See Cross, 48 UCLA L Rev at 923 (cited in note 29) (“It is possible that some particular right, or some circumstances, might escape this critique.”); Winter, 1972 S Ct Rev at 85 (cited in note 29) (“To reject general and substantial redistributions, however, is not to reject all redistributions.”).
Greater attention to the federal judicial oath can also help bridge a rift that has developed between politics and legal practice. Problems of extreme wealth and poverty have become salient subjects of political controversy, as illustrated by the recent presidential campaigns of Senator Bernie Sanders and Secretary Hillary Clinton, as well as by the economic populism sometimes expressed by President Donald Trump.33
See, for example, Stephen Long, US Election: Trump Victory a Working-Class Backlash against Economic Inequality (ABC News, Nov 9, 2016), archived at http://perma.cc/NT8T-PLP6;Joseph Fishkin, The Mirror (Balkinization, Nov 9, 2016), archived at http://perma.cc/9C2M-PLRV(noting “the economic populism that was one crucial thread of Trump’s appeal”); Robert Kuttner, Sanders, Trump, and Economic Populism: Why Populists in Both Parties Are Gaining Support (American Prospect, Jan 12, 2016), archived at http://perma.cc/HT58-5SRQ;Kate Linthicum, Occupy Movement Protesters Fight On—Now in Support of Bernie Sanders (LA Times, Feb 1, 2016), archived at http://perma.cc/56ZX-TQW2;Dan Merica, Clinton: I Will Introduce Campaign Finance Amendment in First 30 Days (CNN, July 16, 2016), archived at http://perma.cc/86BC-RTXE.
For discussion of the Equal Protection Clause, see Part III.D.
See, for example, Cass R. Sunstein, Why Does the American Constitution Lack Social and Economic Guarantees?, in Michael Ignatieff, ed, American Exceptionalism and Human Rights 90, 92 (Princeton 2005) (“The constitutions of most nations create social and economic rights, whether or not they are enforceable. But the American Constitution does nothing of the kind.”); William E. Forbath, The New Deal Constitution in Exile, 51 Duke L J 165, 168 (2001) (“These social and economic rights are found in most of the world’s constitutions; but they are foreign to contemporary American constitutional law.”). But see Stephen Gardbaum, The Myth and the Reality of American Constitutional Exceptionalism, 107 Mich L Rev 391, 446–53 (2008) (arguing that US exceptionalism in this area can be overstated).
See Liu, 61 Stan L Rev at 212 (cited in note 28) (“Judicial recognition of welfare rights must derive its legitimacy from our shared commitments. . . . [W]e cannot hope to change our law without first doing the hard work of changing our politics.”). See also K. Sabeel Rahman, Domination, Democracy, and Constitutional Political Economy in the New Gilded Age: Towards a Fourth Wave of Legal Realism?, 94 Tex L Rev 1329, 1332 (2016) (noting, in the context of economic equality, the relationship between “the ‘big-C’ Constitutionalism of Supreme Court doctrine, precedent, or textual interpretation” and the “‘small-c’ . . . constitutionalism” of “social movements” and “public philosophy”).
The argument proceeds in three parts that respectively explore the equal right principle’s history, its legal meaning today, and its potential implications for the future.
I. Historicizing Equal Right
TOPThe equal right principle has persisted in various forms and contexts for centuries and even millennia—yet its intellectual history has largely gone unexplored.37
For treatment of broader historical issues regarding how money should or does influence judicial behavior, see John T. Noonan Jr, Bribes 83–113, 313–33, 534–53 (Macmillan 1984). For discussion of Founding-era views on corruption, see Zephyr Teachout, The Anti-Corruption Principle, 94 Cornell L Rev 341, 373–79 (2009).
A. The Bible
TOPThe equal right principle is traceable to religious sources, as federal judges of varied faiths have observed.38
See Hellerstein, 29 Touro L Rev at 525 (cited in note 10); Original Great American Chocolate Chip Cookie Co v River Valley Cookies, Ltd, 970 F2d 273, 282 (7th Cir 1992) (Posner); William H. Pryor Jr, The Religious Faith and Judicial Duty of an American Catholic Judge, 24 Yale L & Pol Rev 347, 353 (2006) (“My oath to ‘administer justice without respect to persons, and do equal right to the poor and to the rich’ clearly echoes the Catechism’s aforementioned command to respect the ‘rights of everyone, especially of families and the disadvantaged.’”), quoting Catechism of the Catholic Church ¶ 2237, archived at http://perma.cc/3J72-S4RT.See also text accompanying note 223.
See Mark A. Noll, America’s God: From Jonathan Edwards to Abraham Lincoln 18 (Oxford 2002) (“[S]criptural quotations are taken from the King James Version, which was the Bible of choice for almost all Americans throughout the decades treated in this book.”). For a good introduction to the Hebrew text, see Baruch A. Levine, The JPS Torah Commentary: Leviticus 128–29 (Jewish Publication Society 1989).
The Book of Exodus has the seeds of both halves of the equal right principle but separates them with several lines of distinct text. In the King James Version, the relevant lines from Exodus are translated: “Neither shalt thou countenance a poor man in his cause. . . . Thou shalt not wrest the judgment of thy poor in his cause.”40
Exodus 23:3, 23:6 (King James Version).
The Book of Leviticus takes a large step toward the federal judicial oath by combining Exodus’s dual injunctions into a single epigrammatic statement that mentions two contrasted groups. The King James Version translates the relevant passage from Leviticus as: “Ye shall do no unrighteousness in judgment: thou shalt not respect the person of the poor, nor honour the person of the mighty.”41
Leviticus 19:15 (King James Version).
See Jonathan Magonet, The Structure and Meaning of Leviticus 19, 7 Hebrew Ann Rev 151, 156–58 (1983).
Finally, the Book of Deuteronomy contains a similar directive, which the King James Version translates as: “Ye shall not respect persons in judgment; but ye shall hear the small as well as the great.”43
Deuteronomy 1:17 (King James Version).
While this is not the place for a comprehensive study of these passages, a few pertinent observations stand out. First, the biblical passages apparently refer to economic class in a figurative sense, to capture the broader idea of unequal social status.44
See Magonet, 7 Hebrew Ann Rev at 156–58 (cited in note 42); Nobuyoshi Kiuchi, Leviticus 352 (InterVarsity 2007) (suggesting that Leviticus 19:15 “prohibits partiality in matters of judgment motivated by the social status of the person being judged”). For discussion of the equal right principle’s potential applicability to noneconomic groups, see note 252 and accompanying text.
See, for example, Kiuchi, Leviticus at 352 (cited in note 44) (calling Leviticus 19:15 “[a] prohibition against injustice in court”).
See Rashi, The Complete Tanach with Rashi’s Commentary (Chabad-Lubavitch) (Rosenberg, trans), archived at http://perma.cc/4ZSV-L9EG(commenting that Deuteronomy 1:17 “refers to the person who appoints judges”).
See, for example, Leviticus 25:25, 25:35–41; Deuteronomy 15:7–11.
See, for example, 1 Kings 3:16–28 (King James Version) (recounting the judgment of Solomon). Many commentators have viewed the biblical equal right principles as general or “generic” directives to do “justice.” See, for example, Pietro Bovati, Re-Establishing Justice: Legal Terms, Concepts and Procedures in the Hebrew Bible 188–91 (JSOT 1994). See also Elliot N. Dorff, To Do the Right and the Good: A Jewish Approach to Modern Social Ethics 139 n 40 (Jewish Publication Society 2002) (“The poor, though, were not to be preferred in their cases just because they were poor any more than the rich were to be given special consideration just because they were rich; rather, fairness to all litigants was to be the rule.”); Bruce V. Malchow, Social Justice in the Hebrew Bible: What Is New and What Is Old 24 (Liturgical 1996).
See Maimonides, Mishneh Torah, Law of Courts (Sanhedrin) 21:1–3 (Elliot N. Dorff and Arthur Rosett, trans), in Elliot N. Dorff and Arthur Rosett, A Living Tree: The Roots and Growth of Jewish Law 282, 283–84 (SUNY 1988). Further, judges were sometimes to assist unlearned or inarticulate parties in making their arguments. See id. These principles operated in an inquisitorial legal system in which judges were also viewed as lawgivers. For discussion of how similar judicial principles might operate within the adversarial US legal system, see notes 225–29 and accompanying text.
Ultimately, the biblical passages pose, but cannot answer, the question whether economic justice calls for only formal equality, or for some measure of substantive equality as well.
B. British Practice
TOPFor centuries, British judges took oaths that incorporated versions of the equal right principle. Some of those oaths separately required lawfulness and impartiality, thereby suggesting that the equal right principle had a distinct meaning.
By the seventeenth century, many established British oaths included versions of the equal right principle, which often appeared in addition to separate oaths to impartiality and lawfulness. To wit, the British Lord Chancellor swore that he “shall doe right to all manner of people, poore and rich, after the lawes and usages of the Realm”50
Edward Coke, The Fourth Part of the Institutes of the Laws of England 88 (Flesher 1644).
Book of Oaths at 120–21 (cited in note 9). See also John Fortescue, De Laudibus Legum Angliae 194–95 (Cambridge 1825) (A. Amos, trans).
See Book of Oaths at 176 (cited in note 9).
See id at 118, 211. For example, the law provided the following as to the Mayor of London: “And ye shall truely and right wisely treat the people of your Bayly, and right ye shall do to every person, as well to Stranger as to privy, to poor as to rich, in that that belongeth to you for to do.” Id at 211.
In discussing some of these oaths, Professor Philip Hamburger has argued that only those “judges who might be especially apt to make decisions that did not conform to the law of the land” had to “expressly” swear to rule according to the law.54
Philip Hamburger, Law and Judicial Duty 110 (Harvard 2008). See also Emilio M. Garza, Judicial Duty and the Future: Two Issues of Fundamental Law, 6 J L Phil & Culture 147, 149 (2011) (agreeing with Hamburger that common-law judges “understood their duty to include an obligation to make decisions in accord with the law of the land, including the Constitution, although their oath did not make this commitment express”). Judge Emilio M. Garza further argued that the common-law judges’ “express emphasis in the oath on fairness indicates that the common-law judges viewed their commitment to the law of the land in terms other than pure positivism.” Id.
Hamburger, Law and Judicial Duty at 111 (cited in note 54).
Id.
Further, the King, Parliament, and Chancery all acted on the ideal of equal right.57
For more on Magna Carta’s prohibition on punitive impoverishment, see Beth A. Colgan, Reviving the Excessive Fines Clause, 102 Cal L Rev 277, 321–22 (2014) (discussing Blackstone’s Commentaries).
Scott F. Llewellyn and Brian Hawkins, Taking the English Right to Counsel Seriously in American “Civil Gideon” Litigation, 45 U Mich J L Ref 635, 641–42 (2012), quoting An Act to Admit Such Persons as Are Poor to Sue in Forma Pauperis, 11 Hen 7 ch 12 (1495), reprinted in 2 Statutes of the Realm 499, 578 (1816) (with some modifications for modernization). See also Scott L. Cummings, The Politics of Pro Bono, 52 UCLA L Rev 1, 10 n 36 (2004).
Thomas, Lord Ellesmere, Certaine Observations Concerning the Office of the Lord Chancellor 21 (1651). See also Dennis R. Klinck, Conscience, Equity and the Court of Chancery in Early Modern England 19–20 (Ashgate 2010):
Conscience is certainly presented as a necessary complement to law, and its function here is consistent with that aspect of Chancery jurisdiction which provided recourse to petitioners whose adversaries were too rich or powerful to allow them to get a remedy at law, although less clearly with that aspect of the jurisdiction which involved qualification of “strict law.”
See also A.H. Marsh, History of the Court of Chancery and of the Rise and Development of the Doctrines of Equity 14–15, 47–49 (Carswell 1890) (describing Chancery as “the secret closett of his Majesty’s conscience where his oppressed and distressed subjects hope to find mercy and mitigation against the rigour and extremitye of his lawes” and noting that the Chancellor “Afforded Protection to the Poor and Weak”).
Thomas O. Main, Traditional Equity and Contemporary Procedure, 78 Wash L Rev 429, 441 n 69 (2003).
Willard Barbour, Some Aspects of Fifteenth-Century Chancery, 31 Harv L Rev 834, 856 (1918) (describing “one class of cases which come into chancery because of the inequality of the parties” on the theory that a party’s “adversary may be very rich and powerful, and it will be hopeless to proceed in the ordinary courts”). See also Wesley Newcomb Hohfeld, The Relations between Equity and Law, 11 Mich L Rev 537, 561 (1913) (“In many cases the poverty of the plaintiff is urged as the sole reason why the chancellor should interfere.”); Main, 78 Wash L Rev at 441 n 69 (cited in note 60).
Still, the equal right principle was cabined in important respects. In some areas, British law formally recognized distinct economic classes with differing legal rights.62
For example, the phrase “a jury of one’s peers” originally conveyed the idea that a jury should be composed of persons from the same social class as the accused. See Theodore F.T. Plucknett, A Concise History of the Common Law 203–04 (Butterworth 1956).
See Henry Home of Kames, Principles of Equity 244–45 (Neill 4th ed 1800) (originally published 1760).
Id.
Id.
Later, US courts would be on guard lest equity be used to oppress the poor. See Whalen v Union Bag and Paper Co, 208 NY 1, 5 (1913) (rejecting a result that would “deprive the poor litigant of his little property by giving it to those already rich”). See also generally John Leland Mechem, The Peasant in His Cottage: Some Comments on the Relative Hardship Doctrine in Equity, 28 S Cal L Rev 139 (1955).
C. American Law
TOPThough it dates back to the early months of the republic, the federal judicial oath has precursors within US law. And its nature and context have gradually changed, as the American practice of official oath taking took shape.
Article VI of the US Constitution provides that all state and federal officers, including federal judges, “shall be bound by Oath or Affirmation, to support this Constitution.”67
US Const Art VI, cl 3.
For example, Delegate James Wilson of Pennsylvania said of oaths that “[a] good government did not need them, and a bad one could not or ought not be supported.” Jonathan Elliot, ed, Debates on the Adoption of the Federal Constitution 352 (Lippincott 2d ed 1881).
See Steve Sheppard, What Oaths Meant to the Framers’ Generation: A Preliminary Sketch, 2009 Cardozo L Rev De Novo 273, 277, 283.
After the Constitution’s ratification, the first statute passed by the First Congress was entitled “An Act to regulate the Time and Manner of administering certain Oaths.”70
Act of June 1, 1789, 1 Stat 23. See also Department of Transportation v Association of American Railroads, 135 S Ct 1225, 1235 n * (2015) (Alito concurring).
See Act of June 1, 1789 §§ 1, 3, 1 Stat at 23–24. The First Congress separately prohibited bribes. See Peter W. Bowie, The Last 100 Years: An Era of Expanding Appearances, 48 S Tex L Rev 911, 912–13 (2007).
See, for example, 1 Annals of Cong 277–82 (May 6, 1789). See also David P. Currie, The Constitution in Congress: The Federalist Period, 1789–1801 13–15 (Chicago 1997).
Act of June 1, 1789 § 1, 1 Stat at 23.
5 USC § 3331:
I, AB, do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter. So help me God.
A few months later, the First Congress enacted the Judiciary Act of 1789,75
Debate on the Act included concern for the poor. See, for example, 1 Annals of Cong 851 (Aug 31, 1789) (statement of Rep Smith) (supporting a statutory jurisdictional amount so that “the poor will be protected from being harassed by appeals to the Supreme Court”).
Judiciary Act of 1789 § 8, 1 Stat at 76. The First Congress has often been treated as “a sort of continuing constitutional convention,” because of the Founders who composed it and the fundamentality of its decisions. David P. Currie, The Constitution in Congress: Substantive Issues in the First Congress, 1789–1791, 61 U Chi L Rev 775, 777 (1994).
Judiciary Act of 1789 § 8, 1 Stat at 76.
Judiciary Act of 1789 § 8, 1 Stat at 76. See also Ross E. Davies, William Cushing, Chief Justice of the United States, 37 U Toledo L Rev 597, 599–600 (2006) (“The Judiciary Act did not formulate the oath as a command, but rather as a condition on the performance of the duties for which a Chief Justice (or other federal judge) had been commissioned.”). Davies further notes “that the modern Supreme Court includes on its Court Roster only those who have ‘taken the prescribed oaths.’” Id at 600.
I, A. B., do solemnly swear or affirm, that I will administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent on me as [judge/justice], according to the best of my abilities and understanding, agreeably to the constitution and laws of the United States. So help me God.79
79Judiciary Act of 1789 § 8, 1 Stat at 76. This oath both borrows from and adds to the British judicial oaths while excluding those oaths’ promise not to take bribes. See John T. Noonan Jr, Judicial Impartiality and the Judiciary Act of 1789, 14 Nova L Rev 123, 124 (1989). The federal judicial oath also borrows the biblical phrase “without respect of persons” from the Virginia chancellor’s oath authored by George Wythe. See Noonan, Bribes at 428 (cited in note 37). See also Acts 10:34 (King James Version) (Saint Peter famously declaring: “I perceive that God is no respecter of persons”); Romans 2:11 (King James Version).
This is the oath that Chief Justice John Marshall prominently quoted in Marbury v Madison80
5 US (1 Cranch) 137 (1803).
See id at 180 (quoting the federal judicial oath). For Marshall’s endorsement of the oath’s constitutionality as necessary and proper, see M‘Culloch v Maryland, 17 US 316 (4 Wheat), 416 (1819).
Judiciary Act of 1789 § 8, 1 Stat at 76.
Today, the federal judicial oath is still provided for by statute and remains substantially the same,83
See 28 USC § 453. For the full text of the current oath, see text accompanying note 1. Committee reports on § 453 shed little light on the equal right principle’s meaning.
For example, the phrase “agreeably to” has now been replaced with the modern expression “under.” See Judicial Improvements Act of 1990 § 404, Pub L No 101-650, 104 Stat 5089, 5124, codified at 28 USC § 453. As a result, the affected phrase now appears to modify “duties” rather than “perform.”
See Judicial Improvements Act of 1990 § 404, 104 Stat at 5124, 28 USC § 453.
Similar qualifying language (“to the best of my ability”) appears in the presidential oath set out in Article II of the Constitution, which persisted in the document despite James Wilson’s motion to strike it during the Constitutional Convention. See US Const Art II, § 1, cl 8 (laying out the presidential oath); Philip B. Kurland and Ralph Lerner, eds, 3 The Founder’s Constitution 573–74 (Chicago 1987) (quoting James Madison’s Journal). For the idea of a “mental reservation,” see note 142.
Robert W. Kastenmeier and Michael J. Remington, Judicial Discipline: A Legislative Perspective, 76 Ky L J 763, 792 (1988). Robert W. Kastenmeier was on the House Judiciary Committee, and this article was entered into the record on Pub L No 101-650. See Judicial Improvements Act of 1990, Hearings before the Subcommittee on Courts, Intellectual Property, and the Administration of Justice of the House Committee on the Judiciary, 101st Cong, 1st Sess 134 (1989).
US law honed prior versions of the equal right principle in two notable and interrelated ways. First, US official oaths exhibit a sharp divide between judicial and nonjudicial officials, as federal judges swear or affirm to do equal right to the poor and to the rich, whereas executive and legislative officials generally do not. The equal right principle’s unique prevalence in the context of judges may be consonant with biblical sources, but is quite different from nineteenth-century and earlier British practice, in which many executive oaths included versions of the equal right principle. Second, the equal right principle is largely limited to the federal courts. As noted, the equal right principle was part of the Judiciary Act of 1789, which did not apply to state judges.88
See text accompanying notes 76–78.
See, for example, Cal Const Art XX, § 3; NY Const Art XIII, § 1; Fla Const Art II, § 5; Va Const Art II, § 7; Mich Const Art XI, § 1; Okla Const Art XV, § 1. However, there are significant exceptions. See, for example, Pruett v Mississippi, 574 So 2d 1342, 1363 n 33 (Miss 1990) (Anderson dissenting) (discussing Mississippi’s equal right principle), citing Miss Const Art 6, § 155. See also Philip Fahringer, Equal Protection and the Indigent Defendant: Griffin and Its Progeny, 16 Stan L Rev 394, 394–95 (1964) (“The vast majority of our states included in their constitutions provisions adopting the ideal of equal justice for all.”).
As we will see, the equal right principle continues to appear in judicial reasoning, as federal judges cite the oath in support of both formal and substantive approaches to economic equality.90
See note 23.
The brief historical treatment provided above does not resolve the original meaning of the equal right principle at any point in time, but several considerations point toward a substantive equality reading. The biblical antecedents available to the First Congress conveyed a capacious principle of divine justice that was at least sometimes viewed as having substantive implications. British oath-taking practice likewise suggests that the equal right principle demanded something besides adherence to separate sources of law: the equal right principle was distinct from oaths of lawfulness, and it coexisted with judicial attention to substantive equality. Finally, Congress added the federal judicial oath after implementing the Article VI oath requirement and later tightened the oath’s text without eliminating the equal right principle. These congressional actions, too, suggest that the equal right principle meant something more than that federal judges must follow the law.
II. Understanding Equal Right
TOPThis Part outlines two ways that federal judges might approach the equal right principle. The first involves statutory interpretation, while the second involves “promissory constitutionalism,” or the view that oaths of office are promises that create personal moral obligations. Under either of those approaches, the equal right principle is plausibly viewed as a principle of substantive equality. Further, promissory constitutionalism suggests that the equal right principle’s moral content could be specified through future political mobilization.
A. Statutory Interpretation
TOPUnder conventional standards of statutory interpretation, there is at least a plausible case that the equal right principle calls on federal judges to consider substantive economic equality. On its face, a requirement to do “equal right to the poor and to the rich” is quite broad.91
See Paul Horwitz, Judicial Character (and Does It Matter), 26 Const Commen 97, 163 (2009) (noting “[t]he short but sweeping language of the federal judicial oath”).
See J.A. Simpson and E.S.C. Weiner, eds, 13 Oxford English Dictionary 922–23 (Clarendon 2d ed 1989) (collecting historical usages of the term “right”); Noah Webster, 2 An American Dictionary of the English Language “right, n” (Converse 1828); Samuel Johnson, 2 A Dictionary of the English Language “right, n” (Strahan 1755) (first definition of right, n: “Justice”). Even the legalistic (second-listed) definition of “right” in Webster’s original Dictionary expressly blurs consideration of legal and nonlegal factors: “When laws are definite, right and wrong are easily ascertained and understood,” but when matters are “left without positive law, we are to judge what is right by fitness or propriety, by custom, civility or other circumstances.” Webster, 2 American Dictionary at “right, n” (cited in note 92) (emphasis omitted).
See Joan B. Gottschall, Factfinding as a Spiritual Discipline, 4 U St Thomas L J 325, 335–36 (2006) (“Insofar as an accurate assessment of reality causes a decision-maker to decide in favor of the less powerful person, the decision-maker is simply doing what the oath of federal judges requires: to ‘do equal right to the poor and to the rich.’”); Walter Kendall, Reflections on Judicial Review and the Plight of the Poor in a World Where Nothing Works, 37 John Marshall L Rev 555, 572 n 94 (2004) (glossing the oath: “Do not deny the rich what is theirs by right; but make sure the poor actually receive equal right without regard to their poverty”); James D. Gordon III, Book Review, Cardozo’s Baseball Card, 44 Stan L Rev 899, 907 (1992) (responding to Judge Richard Posner’s formalist invocation of the equal right principle: “It is not ‘bending the rules’ at all to treat unequal things unequally”); Aviam Soifer, On Being Overly Discrete and Insular: Involuntary Groups and the Anglo-American Judicial Tradition, 48 Wash & Lee L Rev 381, 394 (1991) (denying that the oath “rejects a basic point made by John Winthrop . . . : ‘If the same penalty hits a rich man, it pains him not, it is not affliction to him, but if it lights upon a poor man, it breaks his back’”).
Efforts to promote justice are not zero-sum, so promoting justice for one party does not necessitate injustice for another. For example, rights to criminal counsel, see text accompanying notes 227–30, do not unfairly harm “the rich,” and may not adversely affect rich litigants at all.
But see generally Harrison Bergeron, in Kurt Vonnegut, Welcome to the Monkey House 7 (Dell 1968).
See H.L.A. Hart, The Concept of Law 155–59 (Clarendon 1961) (proposing the Aristotelian idea that justice is treating like cases alike).
Justice Felix Frankfurter once quoted Nobel Laureate Anatole France—“The law in its majestic equality, forbids the rich as well as the poor to sleep under bridges, to beg in the streets, and to steal bread”—in objecting to a “ruthless consequence, inevitably resulting from a money hurdle erected by a State.” Griffin v Illinois, 351 US 12, 23 (1956) (Frankfurter concurring in the judgment).
See Soifer, Law and the Company We Keep at 134, 167 (cited in note 13).
For an argument on the importance of having the word “poor” precede the word “rich,” see 75th Cong, 1st Sess, in 81 Cong Rec 9089 (Aug 17, 1937) (statement of Sen Connally) (quoting the equal right principle and asserting: “They put the poor first. If there is any difference, they give the seniority to the poor”).
A substantive equality reading also finds support in the traditional presumption against statutory superfluity.100
See, for example, Lowe v Securities and Exchange Commission, 472 US 181, 207 n 53 (1985) (“[W]e must give effect to every word that Congress used in the statute.”); Montclair v Ramsdell, 107 US 147, 152 (1883) (“It is the duty of the court to give effect, if possible, to every clause and word of a statute.”). See also Ernst Freund, Interpretation of Statutes, 65 U Pa L Rev 207, 218 (1917) (“[T]he legislator is presumed to . . . choose his words deliberately intending that every word shall have a binding effect.”).
See 28 USC § 453. See also note 15 and accompanying text.
Federal judges also take the general federal oath to “support and defend the Constitution.” 5 USC § 3331. And the federal judicial oath promises compliance with all “duties incumbent upon me as ___ under the Constitution and laws of the United States.” 28 USC § 453.
But see William E. Nelson, History and Neutrality in Constitutional Adjudication, 72 Va L Rev 1237, 1260–61 (1986) (linking the equal right principle to the “classical liberal tradition of judicial neutrality”).
Raymond J. McKoski, Reestablishing Actual Impartiality as the Fundamental Value of Judicial Ethics: Lessons from “Big Judge Davis”, 99 Ky L J 259, 324 (2011) (asserting that the federal judicial oath contains three “repetitive statements about administering justice impartially”).
See Arlington Central School District Board of Education v Murphy, 548 US 291, 299 n 1 (2006) (“[I]nstances of surplusage are not unknown.”); Abbe R. Gluck and Lisa Schultz Bressman, Statutory Interpretation from the Inside—an Empirical Study of Congressional Drafting, Delegation, and the Canons: Part I, 65 Stan L Rev 901, 933–36 (2013) (adducing evidence that Congress engages in redundancy).
William Shakespeare, Macbeth Act IV, Scene I (Penguin 2000). See also Brett M. Kavanaugh, Book Review, Fixing Statutory Interpretation, 129 Harv L Rev 2118, 2161–62 (2016) (quoting Macbeth in discussing statutory redundancy).
A skeptic might respond that a substantive reading of the equal right principle would violate the first clause of the federal judicial oath, in which jurists promise to “administer justice without respect to persons.”107
28 USC § 453. For full text, see text accompanying note 1. This phrase, too, is biblical, see Acts 10:34 (Saint Peter famously declaring: “I perceive that God is no respecter of persons”); Romans 2:11, and has a long history in Anglo-American law, see James Q. Whitman, Harsh Justice: Criminal Punishment and the Widening Divide between America and Europe 41–42 (Oxford 2003); Richard M. Re and Christopher M. Re, Voting and Vice: Criminal Disenfranchisement and the Reconstruction Amendments, 121 Yale L J 1584, 1595 nn 53–54, 1662 n 425 (2012) (using “formal equality” to mean desert-based fairness).
See Re and Re, 121 Yale L J at 1662 n 425 (cited in note 107). Thomas Aquinas took a similar view, contrasting “respect for persons” with fair considerations. See Thomas Aquinas, Summa Theologica II-II, Q 63, Art 1 at 187 (Benziger 1918) (“Respect of persons is opposed to distributive justice.”). Commentators who view the clauses as having similar meanings disagree as to whether both or neither clause call for substantive equality. Compare notes 14, 32, with 156, 194, 227.
28 USC § 453.
Alternatively, a skeptic might shift attention from the equal right principle’s text to its authors’ expectations. As we have seen, historical expectations surrounding the equal right principle are far from clear.110
See Part I.
See William N. Eskridge Jr, Dynamic Statutory Interpretation, 135 U Pa L Rev 1479, 1481 (1987) (arguing that “original legislative expectations should not always control statutory meaning” and that “[t]his is especially true when the statute is old and generally phrased and the societal or legal context of the statute has changed in material ways”). See also William N. Eskridge Jr, Dynamic Statutory Interpretation 125–27 (Harvard 1994) (discussing changed social contexts and legal rules). The Supreme Court routinely acknowledges “that a statute can be applied in situations not expressly anticipated by Congress,” at least provided that the statute exhibits textual “breadth.” Pennsylvania Department of Corrections v Yeskey, 524 US 206, 212 (1998) (quotation marks omitted).
The basic approach to statutory interpretation outlined in the main text and referenced in note 111 parallels similar approaches in constitutional theory, calling to mind Professor Ronald Dworkin’s distinction between concepts and conceptions, “new originalism,” and other dynamic modes of constitutional argument. See, for example, Ronald Dworkin, Law’s Empire 70–72 (Belknap 1986); Jack M. Balkin, Original Meaning and Constitutional Redemption, 24 Const Commen 427, 444 (2007); Lawrence B. Solum, The Fixation Thesis: The Role of Historical Fact in Original Meaning, 91 Notre Dame L Rev 1, 55 (2015); Christopher R. Green, Originalism and the Sense-Reference Distinction, 50 SLU L J 555, 556–58 (2006); Mark D. Greenberg and Harry Litman, The Meaning of Original Meaning, 86 Georgetown L J 569, 574–82 (1998).
The Bill of Rights was passed by Congress on September 25, 1789. See Primary Documents in American History: The Bill of Rights (Library of Congress), archived at http://perma.cc/ZAB5-25FS.The Judiciary Act was signed into law the day before. Judiciary Act of 1789, 1 Stat at 73.
A loose comparison might be drawn to, for example, the antitrust laws, whose prohibition on certain “restraint[s] of trade” has long generated an elaborate and ever-evolving set of “common law” reasonableness requirements reflecting contemporary economic theory and reality.114
See, for example, Leegin Creative Leather Products, Inc v PSKS, Inc, 551 US 877, 888, 899 (2007) (calling the Sherman Act a “common-law statute” and noting that its use of “restraint of trade” “invokes the common law itself, . . . not merely the static content that the common law had assigned to the term in 1890”).
See, for example, Business Electronics Corp v Sharp Electronics Corp, 485 US 717, 732 (1988) (“The Sherman Act adopted the term ‘restraint of trade’ along with its dynamic potential.”).
See Part I.B.
Judiciary Act of 1789 § 9, 1 Stat at 76–77, 28 USC § 1350.
28 USC § 1350. See also Sosa v Alvarez-Machain, 542 US 692, 712–38 (2004) (construing 28 USC § 1350).
Sosa, 542 US at 729–30.
Further, changing times and experience have profoundly altered preponderant as well as reasonable understandings of economic equality. While many eighteenth-century legislators may have assumed that the proper ruling class consisted of the landed elite,120
See, for example, Suzanna Sherry, An Originalist Understanding of Minimalism, 88 Nw U L Rev 175, 178 (1993) (“To the extent that the founders were good civic republicans, their elitism was derived not so much from economic self-interest as from a belief that only the ‘natural aristocracy’ had the education, leisure, and inclination to deliberate rationally and disinterestedly about the good of the nation.”).
See, for example, Reynolds v Sims, 377 US 533, 558 (1964); William N. Eskridge Jr and John Ferejohn, A Republic of Statutes: The New American Constitution 183–86 (Yale 2010) (discussing the Social Security Act).
See US Const Amend XVII. See also Beverly J. Ross and William Josephson, The Electoral College and the Popular Vote, 12 J L & Pol 665, 690 (1996) (summarizing the history of states requiring electors to follow the popular vote).
See note 236 and accompanying text.
Yet the equal right principle should remain limited in significant ways. No matter how dynamically construed, for instance, the federal judicial oath is not itself a source of primary law binding on private individuals. In this sense, the equal right principle is unlike, say, the antitrust laws or the ATS, which provide sources of judicial authority to craft and modify rules of conduct binding on private parties. When federal courts elaborate antitrust or ATS rules, they understand themselves to be exercising a kind of delegated legislative authority.124
See text accompanying notes 114–19.
If understood as an interstitial principle, the federal judicial oath would hardly be unique. A great deal of law consists of second-order principles—that is, principles that shape the interpretation of other principles.125
See, for example, US Const Amend IX; Dictionary Act § 2, 16 Stat 431, 431, codified as amended at 1 USC § 1; William Baude and Stephen E. Sachs, The Law of Interpretation, 130 Harv L Rev 1079, 1082–83 (2017).
See R. Shep Melnick, Between the Lines: Interpreting Welfare Rights 7 (Brookings 1994) (arguing that “judicial interpretation of entitlement statutes has substantially enlarged programs for the poor”).
But if the equal right principle really does call for some judicial attention to substantive economic equality, would that law lie within Congress’s legislative power? The answer depends to some extent on how the equal right principle is implemented, a topic discussed in Part III. For now, a précis will suffice. The easy cases are the numerous potential applications of the equal right principle affecting only nonconstitutional federal law and practice. Insofar as it influences how federal judges go about their business, such as by spending more time parsing pro se and in forma pauperis filings, the equal right principle is supported by Congress’s power to legislate in a manner necessary and proper to operating the Article III judiciary.127
See M‘Culloch v Maryland, 17 US (4 Wheat) 316, 416 (1819) (“[H]e would be charged with insanity who should contend, that the legislature might not superadd, to the oath directed by the constitution, such other oath of office as its wisdom might suggest.”). See also Jinks v Richland County, 538 US 456, 462 (2003) (upholding state-court duty to toll certain claims as necessary and proper, noting that “it suffices that [the law] is ‘conducive to the due administration of justice’ in federal court, and is ‘plainly adapted’ to that end”) (citation omitted). Note that Congress’s Necessary and Proper powers may implement the Article III judicial power relating to “equity.” US Const Art III, § 2. See also Part I.B (discussing equity’s history of attention to the poor).
See generally Nicholas Quinn Rosenkranz, Federal Rules of Statutory Interpretation, 115 Harv L Rev 2085 (2002) (defending the general constitutionality of congressional authority to establish rules of statutory construction, and distinguishing effects on constitutional rules). The equal right principle may be on stronger footing than some of Professor Nicholas Quinn Rosenkranz’s proposed rules: rather than dictating basic features of judicial interpretation and so arguably encroaching on the “judicial Power” of Article III, the equal right principle operates only interstitially, after federal judges have already exercised their interpretive powers and ascertained a legal ambiguity. See Larry Alexander and Saikrishna Prakash, Mother May I? Imposing Mandatory Prospective Rules of Statutory Interpretation, 20 Const Commen 97, 98–100 (2003) (opposing “mandatory prospective rules of statutory interpretation,” at least if they override “clear” legislative intent). But see Linda D. Jellum, “Which Is to Be Master,” the Judiciary or the Legislature? When Statutory Directives Violate Separation of Powers, 56 UCLA L Rev 837, 842 (2009) (arguing that “interpretive directives are likely unconstitutional when enacted to apply generally to many statutes”).
The issue of congressional power is more complicated when the equal right principle is directed toward federal constitutional law, because no statute has authority to override the Constitution. But even so, Congress and the equal right principle can play an important role in shaping constitutional doctrine. Implementing constitutional law often depends on variables that lie within legislative control or influence,129
See for example, Nevada Department of Human Resources v Hibbs, 538 US 721, 730–35 (2003) (drawing on a legislative record to uphold a statute enacted pursuant to the Fourteenth Amendment’s Enforcement Clause); Lujan v Defenders of Wildlife, 504 US 555, 578 (1992) (holding that Congress may, through legislation, “elevat[e] to the status of legally cognizable injuries concrete, de facto injuries that were previously inadequate” to establish standing in federal court); Henry P. Monaghan, The Supreme Court 1974 Term—Foreword: Constitutional Common Law, 89 Harv L Rev 1, 2 (1975) (recognizing that “a wide variety of Supreme Court pronouncements are subject to modification and even reversal through ordinary political processes”).
For discussion of legislation authorizing greater judicial enforcement, see note 335 and accompanying text.
Congressional power aside, the equal right principle raises certain federalism questions. Because it is directed toward federal judges, the equal right principle would not directly affect state courts. In this respect, the equal right principle resembles many other aspects of federal law, such as federal canons of interpretation and rules of precedent.131
See Abbe R. Gluck, The States as Laboratories of Statutory Interpretation: Methodological Consensus and the New Modified Textualism, 119 Yale L J 1750, 1753–54 (2010).
New State Ice Co v Liebmann, 285 US 262, 311 (1932) (Brandeis dissenting).
A pragmatically minded skeptic might respond with a dose of legal realism. Conventional legal argument is all well and good, but will those arguments change outcomes? The next Section will have more to say on this score, but for now it should suffice to posit that conventional legal arguments both do and should matter to a significant set of judges in a significant set of cases. True, federal courts should frequently decline to consider substantive economic equality based on clear law or other considerations, without having occasion to consider the interstitial equal right principle. Yet the equal right principle would still matter. When arguments for substantive economic equality are neither foreclosed nor foreordained by separate sources of law, at least some jurists will be concerned about overstepping their conception of the judicial role or inviting unwanted public criticism. And that caution may be especially acute for the median jurist. At that critical juncture, a new argument from positive law and conventional legal interpretation could play an important role in tipping the scales and altering outcomes.
Finally, some readers might wonder whether the equal right principle is a rule of judicial decision-making at all. Read narrowly, the statute establishing the equal right principle might simply prescribe a ritual that incoming jurists must perform. The oath’s legal implications would then be exhausted once federal judges swear or affirm the oath, regardless of how they later decide cases. But why would Congress legislate such an oath, if it did not want the oath to be obeyed? A more plausible view is that the statutory oath impliedly conveys a legal directive that installed judges actually “do equal right to the poor,” after taking office. However, there is another, closely related explanation for the equal right principle: perhaps Congress recognized and desired that a legally required practice of oath taking would generate certain moral obligations. That possibility is explored in the next Section.
B. Promissory Constitutionalism
TOPThe equal right principle is not just a statute; it is also a promise and, therefore, a source of personal moral obligations. This Section explores the promissory aspect of the equal right principle and argues that its moral content can be specified through public contestation, particularly during judicial confirmation hearings.
Promissory constitutionalism begins with the observation that oaths of office are “promissory oaths”—that is, they define social roles through a kind of promise.133
See Richard M. Re, Promising the Constitution, 110 Nw U L Rev 299, 307, 310–11 (2016) (discussing “promissory oaths” in discussing the Article VI oath to support “the Constitution”). See also William Baude, Is Originalism Our Law?, 115 Colum L Rev 2349, 2394 (2015); Frank H. Easterbrook, Textualism and the Dead Hand, 66 Geo Wash L Rev 1119, 1122 (1998). The Supreme Court often posits that oaths affect officials. See, for example, Hollingsworth v Perry, 133 S Ct 2652, 2667 (2013).
See Ronald Dworkin, Justice for Hedgehogs 303–04 (Belknap 2011) (outlining the reliance account); T.M. Scanlon, What We Owe to Each Other 302–09 (Belknap 1998) (outlining the assurance account); Judith Jarvis Thomson, The Realm of Rights 296–301 (Harvard 1990) (emphasizing the need for some type of “uptake” by the promisee); Seana Valentine Shiffrin, Promising, Intimate Relationships, and Conventionalism, 117 Phil Rev 481, 484–85 (2008) (outlining the power relationship account).
See Re, 110 Nw U L Rev at 308 (cited in note 133) (discussing the Article VI constitutional oath).
Just as important, the equal right principle avoids important promissory pitfalls, or reasons why some apparent promises do not actually carry moral force. Most saliently, promises have moral force only if both adequately voluntary and morally permissible.136
See Seana Valentine Shiffrin, Speech Matters: On Lying, Morality, and the Law 47–48 (Princeton 2014) (arguing that, under certain conditions, promises can be binding despite duress); Joseph Raz, The Morality of Freedom 173 (Oxford 1988) (noting that in most instances the “right to promise does not include the right to promise to perform immoral acts”).
See Shiffrin, Speech Matters at 47 (cited in note 136). In addition, the equal right principle cannot trump other sources of law. See text accompanying note 175.
See Re, 110 Nw U L Rev at 313–14 (cited in note 133).
To the extent that the equal right principle became a subject of popular mobilization, its moral implications might be compared (and contrasted) with political campaign promises by elected officials—a topic for further research.
But if the equal right principle creates a promissory obligation, then what is its content? In general, the content of a promissory obligation derives from the mutually understood meaning communicated between promisor and promisee at the time of the promise.140
See, for example, David Hume, A Treatise of Human Nature 523 (Clarendon 1896) (L.A. Selby-Bigge, ed) (noting that an “expression makes on most occasions the whole of the promise”). This claim sets aside defective promises, such as deception or miscommunication, which may not give rise to promises at all.
See generally Ralf Poscher, Ambiguity and Vagueness in Legal Interpretation, in Peter M. Tiersma and Lawrence M. Solan, eds, The Oxford Handbook of Language and Law 128 (Oxford 2012).
I focus on public meaning to exclude any private meanings that a speaker might secretly intend by using a certain expression. See Shiffrin, Speech Matters at 150 n 59 (cited in note 136) (criticizing the “doctrine of mental reservation” and noting that the federal oath disclaims any mental reservation); 5 USC § 3331.
See text accompanying notes 109–12.
At present, the public meaning of the equal right principle hovers somewhere between prohibiting and requiring consideration of substantive economic equality. This underdeterminacy is visible in the divided opinions on the subject.144
See note 23.
See Re, 110 Nw U L Rev at 320–22 (cited in note 133) (arguing that oaths incorporate lawful interpretive methods). See also text accompanying note 176.
See Part II.A.
See Douglas W. Kmiec, Judicial Selection and the Pursuit of Justice: The Unsettled Relationship between Law and Morality, 39 Cath U L Rev 1, 17 (1989) (“Few laymen are familiar with the first line of the judicial oath to ‘administer justice without respect to persons, and do equal right to the poor and to the rich.’”).
The promise is “forgotten” by comparison with the Article II and various Article VI oaths to uphold the Constitution. See Re, 110 Nw U L Rev at 317–18 (cited in note 133). See also Kermit Roosevelt III, The Myth of Judicial Activism: Making Sense of Supreme Court Decisions 23 (Yale 2006) (noting the general constitutional oath and observing that “[i]t is one of the striking features of American government that the primary object of loyalty is not a person, a party, an office, or even a nation, but the Constitution itself”).
See note 23.
Yet the equal right principle’s underdeterminacy is contingent on current political and cultural conditions. Promissory constitutionalism suggests that political contestation could inform public understandings of official oaths, thereby specifying their content.150
See Re, 110 Nw U L Rev at 322–28 (cited in note 133).
See text accompanying note 33.
Viewing the equal right principle as substantive would help to fill a void in constitutional culture.152
For the need to link the law of economic equality with politics, see note 36. For the history of political mobilization around economic equality, including in legal contexts, see generally Sean Wilentz, The Politicians and the Egalitarians: The Hidden History of American Politics (Norton 2016); Joseph Fishkin and William E. Forbath, The Anti-Oligarchy Constitution, 94 BU L Rev 669 (2014).
Many broad constitutional principles serve as a “platform” or “focal point” for public contestation over time. See Jack M. Balkin, Living Originalism 134 (Belknap 2011) (“To argue about the Constitution, one must have a common platform for arguing, first to disagree with others, then to persuade them.”); David A. Strauss, Common Law, Common Ground, and Jefferson’s Principle, 112 Yale L J 1717, 1734 (2003) (“The text of the Constitution is a particularly good focal point of this kind. Because of the way it is regarded in our culture, it is a natural place to look for a solution on which we can all agree, when agreement is especially valuable.”).
See note 35.
The best alternative platform is probably the Equal Protection Clause, discussed in Part III.D. For now, note that the Equal Protection Clause does not specify economic class and so can more easily be construed—consistent with extant precedent—as agnostic on matters of economic justice. At the same time, the Equal Protection Clause is also relatively confining: it has given rise to a complex doctrinal edifice involving “tiers of scrutiny,” and that framework—while powerful—tends to obscure subtler options, such as those discussed in Parts III.A–C.
See William E. Nelson, The Role of History in Interpreting the Fourteenth Amendment, 25 Loyola LA L Rev 1177, 1180 (1992) (“[The Court should] commit itself to the furtherance of the principles best able to generate public support for the judiciary’s duty to ‘administer justice without respect to persons, and do equal right to the poor and to the rich.’”); Dan T. Coenen, A Constitution of Collaboration: Protecting Fundamental Values with Second-Look Rules of Interbranch Dialogue, 42 Wm & Mary L Rev 1575, 1596 (2001). See also generally William N. Eskridge Jr, Overriding Supreme Court Statutory Interpretation Decisions, 101 Yale L J 331 (1991).
Some public contestation over the federal judicial oath’s meaning has already taken place, albeit indecisively. Consider then-Senator Barack Obama’s argument that federal judges should have “empathy to understand what it’s like to be poor,” among other things.157
See Carrie Dann, Obama on Judges, Supreme Court (NBC News, July 17, 2007), archived at http://perma.cc/AZG8-KC6M(quoting Obama’s speech).
Steven G. Calabresi, Obama’s ‘Redistribution’ Constitution, Wall St J A17 (Oct 28, 2008). See also Jonah Goldberg, Empathy vs. Impartiality, (National Review Online, May 27, 2009), archived at http://perma.cc/N9Y9-Q7J3(“[Obama] wants the justice’s oath to in effect be rewritten. Judges must administer justice with respect to persons, they must be partial to the poor, and so on.”).
See 111th Cong, 1st Sess, in 155 Cong Rec 15848 (June 23, 2009) (statement of Sen Sessions) (“[W]hatever else empathy might be, it is not law. So I think empathy as a standard, preference as a standard is contrary to the judicial oath.”). The Senate has heard contrary readings of the oath. See, for example, note 99 (quoting the equal right principle and asserting: “They put the poor first. If there is any difference, they give the seniority to the poor”).
Ultimately, the hearings for then-Judge Sonia Sotomayor featured expressions of both formal and substantive readings of the equal right principle. See Nomination of Hon. Sonia Sotomayor to Be an Associate Justice of the Supreme Court of the United States, Hearing before the Senate Committee on the Judiciary, 111th Cong, 1st Sess 6, 22–23, 39, 67–69, 73 (2009).
Confirmation hearings for Supreme Court justices offer perhaps the most salient forum for public discussion of the equal right principle.161
A large literature endorses significant substantive engagement with nominees during confirmation hearings. See, for example, Christopher L. Eisgruber, The Next Justice: Repairing the Supreme Court Appointments Process 169–77 (Princeton 2007); Elena Kagan, Book Review, Confirmation Messes, Old and New, 62 U Chi L Rev 919, 935 (1995) (“[T]he Senate’s confirmation hearings [ ] ought to focus on substantive issues.”); Robert C. Post and Reva B. Siegel, Questioning Justice: Law and Politics in Judicial Confirmation Hearings, 115 Yale L J Pocket Part 38, 44–45 (2006). But see note 173 (noting that nominees often resist making promises).
US Const Art II, § 2, cl 2. That is, the hearings could be a senatorial construction of the Constitution.
See Michael J. Gerhardt, The Federal Appointments Process: A Constitutional and Historical Analysis 67 (Duke 2d ed 2003).
See Henry J. Abraham, Justices, Presidents, and Senators: A History of the U.S. Supreme Court Appointments from Washington to Bush II 153–54 (Rowman & Littlefield 5th ed 2008).
See Denis Steven Rutkus, Supreme Court Appointment Process: Roles of the President, Judiciary Committee, and Senate *20–21 (Congressional Research Service, Feb 19, 2010), archived at http://perma.cc/UUM8-QT3B.
US Const Amend XVII.
See Gerhardt, The Federal Appointments Process at 65–66 (cited in note 163); David R. Stras, Book Review, Understanding the New Politics of Judicial Appointments, 86 Tex L Rev 1033, 1057–68 (2008).
Nomination of Samuel A. Alito, Jr. to Be an Associate Justice of the Supreme Court of the United States, Hearing before the Senate Committee on the Judiciary, 109th Cong, 2d Sess 17 (2006).
Id.
Confirmation hearings have recently drawn public attention to judicial minimalism, stare decisis, and hot-button issues like abortion rights.170
See, for example, Roberts Hearings, 109th Cong, 1st Sess at 448–49 (cited in note 2) (statement of John G. Roberts Jr).
As Professor Stephen J. Wermiel noted, senators “hope that, once confirmed, the new Justices will remember the importance of the core values urged on them by the senators or at least feel bound by the assurances they gave during their hearings.” Stephen J. Wermiel, Confirming the Constitution: The Role of the Senate Judiciary Committee, 56 L & Contemp Probs 121, 142 (1993). Empirical research suggests that a nominee’s answers in hearing have some albeit limited correlation with the nominee’s subsequent behavior. See Jason J. Czarnezki, William K. Ford, and Lori A. Ringhand, An Empirical Analysis of the Confirmation Hearings of the Justices of the Rehnquist Natural Court, 24 Const Commen 127, 130, 158–59 (2007). Of course, such a correlation may not be caused by a judge’s sense of having committed herself to a view.
See text accompanying notes 2–4. Still, Roberts’s apparent endorsement of substantive economic equality was ambivalent, as he went on to make statements that arguably suggested a formal equality view. See text accompanying notes 3–4.
Over time, a pattern of confirmation hearings or a trend in public debate could establish a new, generally applicable public understanding of what the equal right principle requires. Or a particular hearing could inflect the public meaning of a single jurist’s promissory obligations: to the extent that a nominee publicly specified the equal right principle’s meaning, that public meaning would then become part of the relevant nominee’s subsequent promise to the public.173
See Re, 110 Nw U L Rev at 325–26 (cited in note 133). See also Baude, 115 Colum L Rev at 2394–96 (cited in note 133). Confirming the perceived moral significance of statements made in hearings, nominees customarily decline to answer certain questions, such as questions about specific cases, to avoid the appearance or reality of making a “promise.” See, for example, Kagan Hearings, 111th Cong, 2d Sess at 231 (cited in note 27) (statement of Elena Kagan) (declining to “promise”); O’Connor Hearings, 97th Cong, 1st Sess at 57–58 (cited in note 27) (statement of Sandra Day O’Connor) (declining to answer certain questions to avoid having “morally committed myself to a certain position”).
Notably, a judge’s legal and promissory obligations are not necessarily identical to the proper conditions for the judge’s removal. See US Const Art II, § 4; US Const Art III, § 1. For example, someone can coherently argue for or against originalism without endorsing the impeachment of judges who take a contrary view.
Still, promissory constitutionalism confirms that the equal right principle should operate only interstitially, not as a means of trumping or replacing separate sources of law. As we have seen, the equal right principle operates in tandem with a separate oath to uphold the law,175
See text accompanying notes 67–69. See also Part I.C. But see William C. Porth and Robert P. George, Trimming the Ivy: A Bicentennial Re-Examination of the Establishment Clause, 90 W Va L Rev 109, 112 n 10 (1987) (“If anyone were to argue that the form of the judicial oath confers upon judges a special license to manipulate or disregard constitutional provisions, he would merely be making a case for the unconstitutionality of the statute prescribing the oath.”).
See Re, 110 Nw U L Rev at 304–05 (cited in note 133) (arguing that oaths to adhere to law incorporate lawful interpretive methods).
So while judges could in principle experience moral conflict between a promised interpretive method and a promised principle of law, see id at 351–54, there is no need to determine how to resolve that conflict here, see Part II.A.
Promissory constitutionalism can be compared with some forms of “popular constitutionalism,” particularly the view that popular movements should inform constitutional law.178
See Barry Friedman, Mediated Popular Constitutionalism, 101 Mich L Rev 2596, 2598 & n 11 (2003) (explaining that what popular constitutionalists “seem to share is a notion that—at least in specified circumstances—judicial review should mirror popular views about constitutional meaning”). See also Katie R. Eyer, The Declaration of Independence as Bellwether, 89 S Cal L Rev 427, 429 n 7 (2016); Robert Post and Reva Siegel, Roe Rage: Democratic Constitutionalism and Backlash, 42 Harv CR–CL L Rev 373, 376–77 (2007) (elaborating a related, primarily descriptive view of “democratic constitutionalism”); Robert Post and Reva Siegel, Popular Constitutionalism, Departmentalism, and Judicial Supremacy, 92 Cal L Rev 1027, 1039 (2004) (“[J]udges can ground constitutional law in the Constitution only by incorporating the political convictions of the nation into the substance of constitutional law.”).
But see Post and Siegel, 42 Harv CR–CL L Rev at 381–82 (cited in note 178) (arguing that “[p]residential politics and Supreme Court nominations [ ] are blunt and infrequent methods of affecting the content of constitutional law”).
See Re, 110 Nw U L Rev at 304–05 (cited in note 133) (setting out two mechanisms of legal change relating to the Article VI oath to support the Constitution).
New popular views can sometimes alter the implications of prior oaths by triggering “change rules,” or rules for altering rules. See Re, 110 Nw U L Rev at 304–05 (cited in note 133). For example, a judge who took her oath today might be committed to changing her view of certain laws in light of new amendments, statutes, or precedents. In some areas of law, change rules may be sensitive to changes in popular views. See id.
Greater public attention to the equal right principle should have widespread appeal, even among people who disagree about how to resolve questions of equal right. Already, federal courts routinely assert competing versions of economic equality when implementing the law. Think of recent constitutional cases on the right to counsel or campaign finance, or statutory cases on the Patient Protection and Affordable Care Act182
Pub L No 111-148, 124 Stat 119 (2010). These examples are discussed in Part III.A (counsel), Part III.B (healthcare), and Part III.C (campaign finance).
For examples of federal-court debate on the issue of “equal right,” see Patterson v McLean Credit Union, 485 US 617, 619, 621 (1988); United States v Cilins, 2013 WL 3802012, *3 (SDNY), citing 28 USC § 453.
Promissory constitutionalism answers that question by advancing a principled framework for addressing public disagreement on economic equality, not by dictating any specific deliberative outcome. Again, some public contestation on these points has already taken place.184
See notes 157–60 and accompanying text (discussing public debate over judicial “empathy” and the equal right principle).
See Liscow, Note, 123 Yale L J at 2483–84 (cited in note 30). See also Bowen v Gilliard, 483 US 587, 600–01 (1987) (emphasizing the need for judicial deference to the political branches in spending and entitlement programs); Atkins v Parker, 472 US 115, 129 (1985) (same).
See generally, for example, Randy E. Barnett, Restoring the Lost Constitution: The Presumption of Liberty (Princeton 2004) (providing a libertarian constitutionalism). See also notes 357–59 and accompanying text (discussing the oath’s theoretical thinness).
Lochner v New York, 198 US 45, 75 (1905) (Holmes dissenting). For other contrasts with Lochner, see text accompanying notes 357–59.
See W.B. Gallie, Essentially Contested Concepts, 56 Proc Aristotelian Socy 167, 173–80 (1956). See also Mark Tushnet, Taking the Constitution Away from the Courts 194 (Princeton 1999) (“Populist constitutional law does not determine the outcomes of political controversies. . . . Instead, it orients us as we think about and discuss where our country ought to go.”).
In sum, promissory constitutionalism points toward an untapped source of legal and public reasoning regarding economic equality: the statutorily established federal judicial oath. At present, the equal right principle can plausibly be read as a principle of substantive economic equality, and current federal judges therefore have moral discretion to consider and promote class-based fairness. Yet the content of the federal judicial oath depends in part on its public meaning, which can change. Moreover, the equal right principle is an unusually salient promise that could become a focal point for public contestation, including during confirmation hearings. In time, increased attention to the equal right principle could specify federal judges’ promissory obligations and thus generate important changes in how federal judges ought to discharge their oaths of office. That normative conclusion would have legal implications to the extent that promissory constitutionalism influences who is nominated, as well as how those nominees, once confirmed, understand their obligations. The next Part explores these implications.
III. Implementing Equal Right
TOPEven if the equal right principle plausibly calls for federal judges to consider substantive economic equality, there is still ample room for debate about how to implement that ideal. This Part outlines several mutually compatible and overlapping possibilities. These proposals all operate within the interstices of existing law and so are quite different from saying that federal courts should aim to equalize or redistribute social wealth.189
See note 32 and accompanying text.
See note 185.
A. Adjudicative Equality
TOPIf judges are to “do equal right to the poor,” they might look first to their own courthouses. Because it is directed toward judges, the equal right principle forcefully applies to adjudicatory principles—that is, to the system for resolving competing claims of “right.” Federal judges thus have legal and moral reasons to foster a legal process that vindicates the rights of both the rich and the poor.
The adjudicative process is not just practically but also morally distinct from many other types of social endeavor. Though the legal profession is itself a kind of trade that operates within a market, the judicial process has distinctly noneconomic purposes that are central to its legitimacy.191
See, for example, Michael Walzer, Spheres of Justice: A Defense of Pluralism and Equality 100–02 (Basic 1983). The legal profession’s simultaneous efforts at adhering to both fairness- and market-based values have always been challenging. See, for example, Gillian K. Hadfield, The Price of Law: How the Market for Lawyers Distorts the Justice System, 98 Mich L Rev 953, 955 (2000) (“The profession is entrusted with guardianship of the justice system, and so imbued with the qualities of public service, but it also primarily distributes its goods via commercial, private markets.”).
As Professor Alexandra D. Lahav puts it: “[E]ven if resource inequality characterizes our society, the court system ought not reflect and reinforce those extant inequalities in enforcing legal rights and obligations. . . . The oath of judicial office requires fidelity to a principle of equality before the court.” Alexandra D. Lahav, Symmetry and Class Action Litigation, 60 UCLA L Rev 1494, 1519–20 (2013). See also Owen M. Fiss, The Supreme Court 1978 Term—Foreword: The Forms of Justice, 93 Harv L Rev 1, 24 (1979) (arguing that judges must ensure “that a just result will be reached, not one determined by the distribution of resources in the natural lottery or in the market”); Kenneth L. Karst, The Supreme Court 1976 Term—Foreword: Equal Citizenship under the Fourteenth Amendment, 91 Harv L Rev 1, 59 (1977).
In most cases, federal courts can fully honor their special social role simply by applying the law in accordance with formal equality, without making any accommodation for the implications of economic disparities. When procedural rules interact with background conditions of economic inequality, however, a court’s adherence to principles of formal equality can generate substantive economic inequality, contrary to equal right.193
See Soifer, 48 Wash & Lee L Rev at 394 (cited in note 93) (denying that the equal right principle “would require judges to ignore different starting places, significant encumbrances, and the weight of the past”); William M. Richman and William L. Reynolds, Elitism, Expediency, and the New Certiorari: Requiem for the Learned Hand Tradition, 81 Cornell L Rev 273, 277 (1996) (“Federal appellate courts are treating litigants differently, a difference that generally turns on a litigant’s ability to mobilize substantial private legal assistance. As a result, judicial procedures no longer permit judges to fulfill their oath of office.”).
The US Supreme Court offered similar reasoning in Griffin v Illinois,194
351 US 12 (1956) (Black) (plurality). See also Thiel v Southern Pacific Co, 328 US 217, 226 (1946) (Frankfurter dissenting):
The process of justice must of course not be tainted by property prejudice any more than by racial or religious prejudice. The task of guarding against such prejudice . . . is embraced in the duty, formulated by the judicial oath, to “administer justice without respect to persons, and do equal right to the poor and to the rich.”
Bearden v Georgia, 461 US 660, 664 (1983) (collecting cases that cite the Griffin principle).
Griffin, 351 US at 13–14.
See id at 18.
Id at 16 & n 10.
Id at 19.
See Griffin, 351 US at 17.
Once applied to adjudicatory equality, the equal right principle plausibly supports a variety of legal reforms. For starters, federal courts can allocate their own resources in a way that would achieve substantive economic equality. Perhaps the best example is the already widely held maxim that pro se filings should be carefully and generously construed, which represents a judicial response to background conditions of poverty.201
See Erickson v Pardus, 551 US 89, 94 (2007) (noting that a document filed pro se is “to be liberally construed”). See also FRCP 8(e) (“Pleadings must be construed so as to do justice.”); Kevin H. Smith, Justice for All?: The Supreme Court’s Denial of Pro Se Petitions for Certiorari, 63 Albany L Rev 381, 385 (1999) (invoking the equal right principle to criticize pro se certiorari practice); William M. Richman, Rationing Judgeships Has Lost Its Appeal, 24 Pepperdine L Rev 911, 912 (1997) (invoking the equal right principle in criticizing appellate practice for having “created different tracks of justice for different cases and different litigants”); Carl Tobias, The New Certiorari and a National Study of the Appeals Courts, 81 Cornell L Rev 1264, 1267 (1996).
See, for example, Estelle v Gamble, 429 US 97, 106 (1976).
See Erickson, 551 US at 94, quoting Estelle, 429 US at 106; 28 USC § 1915 (establishing procedures for in forma pauperis filings).
In addition, the Court might consider the equal right principle when interpreting, implementing, and constructing adjudicatory rules.204
For discussion of legal construction, as opposed to interpretation, see note 279 and accompanying text.
This approach overlaps with the canon-based approach of Part III.B.
See, for example, Wal-Mart Stores, Inc v Dukes, 564 US 338, 367 (2011). See also Brooke D. Coleman, One Percent Procedure, 91 Wash L Rev 1005, 1013–24 (2016) (arguing that interests of the wealthy set the tone for civil procedure, including for class actions); Myriam Gilles, Class Warfare: The Disappearance of Low-Income Litigants from the Civil Docket, 65 Emory L J 1531, 1536–37 (2016).
See Samuel Issacharoff, Preclusion, Due Process, and the Right to Opt Out of Class Actions, 77 Notre Dame L Rev 1057, 1060 (2002) (noting that defendants may have “an incentive to expend resources in litigation that would overwhelm any individual litigant, even if the amount of the claim would conceivably justify one-on-one litigation”).
See Lahav, 60 UCLA L Rev at 1519–20 (cited in note 192); Marvin E. Frankel, Amended Rule 23 from a Judge’s Point of View, 32 Antitrust L J 295, 299 (1966) (reporting Benjamin Kaplan’s reference to the “class action’s historic mission of taking care of the smaller guy”) (quotation marks omitted).
See, for example, Campbell-Ewald Co v Gomez, 136 S Ct 663, 672, 677 (2016).
Procedural due process cases supply another pointed example. Under current doctrine, courts must consider “the private interest that will be affected by the official action,”210
Matthews v Eldridge, 424 US 319, 335 (1976).
Goldberg v Kelly, 397 US 254, 264 (1970). The Supreme Court has indicated that the proper inquiry focuses on the needs of the affected group as a whole, not necessarily the needs of any individual claimant. See Walters v National Association of Radiation Survivors, 473 US 305, 321 (1985).
See Goldberg, 397 US at 264 (expressing concern that there be adequate process to preserve the “means by which to live”).
409 US 434 (1973).
See id at 436, 449–50.
Id at 449.
Id at 460 (Marshall dissenting).
Kras, 409 US at 460 (Marshall dissenting).
See In re Amendment to Rule 39, 500 US 13, 15 n * (1990) (per curiam) (Marshall dissenting) (quoting the expression of the equal right principle in the judicial oath). Dean Martha Minow, a former clerk of Justice Thurgood Marshall, noted that the Justice:
maintained that [a] new [in forma pauperis] rule in effect amended the oath of each Justice by eliminating the commitment to “do equal right to the poor and to the rich” to read instead: “All men and women are entitled to their day in Court only if they have the means and the money.”
Martha Minow, A Tribute to Justice Thurgood Marshall, 105 Harv L Rev 66, 74 n 68 (1991), quoting In re Amendment to Rule 39, 500 US at 15 n * (Marshall dissenting).
Similar reasoning extends to criminal adjudication. Consider the imposition of criminal fines. Even though the Eighth Amendment prohibits “excessive fines,” courts often fail to consider defendants’ wealth when establishing financial penalties.219
US Const Amend VIII. See also United States v Bajakajian, 524 US 321, 328–36 (1998); Colgan, 102 Cal L Rev at 320–36 (cited in note 57).
See Colgan, 102 Cal L Rev at 322 (cited in note 57) (relaying Blackstone’s observation that “[t]he value of money itself changes from a thousand causes; and, at all events, what is ruin to one man’s fortune, may be matter of indifference to another’s”). See also id (“[T]he Magna Carta treated a fine that would impoverish a defendant as per se disproportionate.”), citing Magna Carta Art 20.
Likewise with the bail process: the Eighth Amendment bars “[e]xcessive bail,”221
US Const Amend VIII.
See Nick Pinto, The Bail Trap (NY Times Mag, Aug 13, 2015), online at http://www.nytimes.com/2015/08/16/magazine/the-bail-trap.html(visited Apr 30, 2017) (Perma archive unavailable).
United States v Cilins, 2013 WL 3802012, *3 (SDNY), citing 28 USC § 453.
See, for example, United States v Zarrab, 2016 WL 3681423, *13 (SDNY) (“That pledge is violated if a defendant, who is a serious risk of flight with every incentive to flee and the means to do so, is permitted to buy his way out of detention.”), quoting Cilins, 2013 WL 3802012 at *3; United States v Valerio, 9 F Supp 3d 283, 292–94 (EDNY 2014) (noting that “it is highly questionable whether the Bail Reform Act contemplates” private jail), quoting Cilins, 2013 WL 3802012 at *3.
Or consider Gideon v Wainwright,225
372 US 335 (1963).
Id at 342–44 (construing US Const Amend XIV). On the same day the Court also afforded indigents a right to counsel for their first appeal of right from a criminal conviction. See Douglas v California, 372 US 353, 357 (1963) (“But where the merits of the one and only appeal an indigent has as of right are decided without benefit of counsel, we think an unconstitutional line has been drawn between rich and poor.”).
From the very beginning, our state and national constitutions and laws have laid great emphasis on procedural and substantive safeguards designed to assure fair trials before impartial tribunals in which every defendant stands equal before the law. This noble ideal cannot be realized if the poor man charged with crime has to face his accusers without a lawyer to assist him.227
227Gideon, 372 US at 344. See also Daugherty v Beto, 388 F2d 810, 817 (5th Cir 1967) (Rives dissenting) (“It seems to me that my oath of office to ‘administer justice without respect to persons, and do equal right to the poor and to the rich,’ compels me to do all in my power to require really effective service from appointed counsel.”) (citation omitted).
By providing a statutory basis for this “noble ideal,” the equal right principle might help sustain or even strengthen Gideon during what is widely regarded as a time of crisis for public defenders.228
See Turner v Rogers, 564 US 431, 444–49 (2011) (discussing the right to counsel in connection with civil litigation when the party may face imprisonment). See also Dylan Walsh, On the Defensive (The Atlantic, June 2, 2016), archived at http://perma.cc/9SQG-JTKV.
Tamara Audi, ‘Civil Gideon’ Trumpets Legal Discord (Wall St J, Oct 27, 2009), archived at http://perma.cc/7M8X-KZ2M.
See note 49 and accompanying text.
Miranda v Arizona231
384 US 436 (1966).
Id at 471–72.
Many advocates for greater adjudicative equality presently overlook the equal right principle and focus instead on the phrase “Equal Justice Under Law.”233
See Deborah L. Rhode, Access to Justice 3–25 (Oxford 2004) (invoking the “equal justice under law” inscription to challenge procedural barriers to justice for the poor). See also Judith Resnik, Equality’s Frontiers: Courts Opening and Closing, 122 Yale L J Online 243, 254 (2013); Rebecca E. Zietlow, Exploring a Substantive Approach to Equal Justice Under Law, 28 NM L Rev 411, 438 (1998); Zoe Tillman, Garland, Mum on Nomination, Urges Lawyers to Close Justice Gap (Natl Law J, Apr 21, 2016), archived at http://perma.cc/5JFX-93DW(recounting Chief Judge Merrick B. Garland’s remarks that “[w]ithout legal assistance, poor individuals and families have no real access to justice” and that “[w]ithout access to justice, the promise of equal justice rings hollow”).
See Office of the Curator, Supreme Court of the United States, The West Pediment: Information Sheet (Aug 28, 2003), archived at http://perma.cc/XHJ2-NTP3.See also Jim Chen, Mayteenth, 89 Minn L Rev 203, 217 n 81 (2004). The inscription resembles Pericles’s funeral oration, which invoked a kind of equal right principle. See Thucydides, The Peloponnesian War 108 (Random House 1982) (T.E. Wick, ed) (Richard Crawley, trans) (“If we look to the laws, they afford equal justice to all in their private differences; . . . class considerations [are] not being allowed to interfere with merit.”).
B. Canon of Interpretation
TOPAnother possibility is to view the equal right principle as a canon of interpretation—that is, as a reason to construe ambiguous law in favor of economic equality.235
In construing ambiguous statutory provisions directed toward the poor, courts have often—if inconsistently—erred on the side of expanding statutory welfare rights and other aspects of economic equality. See generally Melnick, Between the Lines (cited in note 126).
Begin with the link between wealth and political power. In general, several features of the US political process tend to empower the wealthy over those of more modest means. Examples include campaign contributions, lobbying efforts, and even the likelihood of voting (or being able to vote).236
See generally Martin Gilens, Affluence and Influence: Economic Inequality and Political Power in America (Princeton 2012). See also Daryl J. Levinson, The Supreme Court 2015 Term—Foreword: Looking for Power in Public Law, 130 Harv L Rev 31, 122, 138 (2016); Nicholas O. Stephanopoulos, Political Powerlessness, 90 NYU L Rev 1527, 1577–79 (2015); Ganesh Sitaraman, The Puzzling Absence of Economic Power in Constitutional Theory, 101 Cornell L Rev 1445, 1455–66 (2016); Bertrall L. Ross II and Su Li, Measuring Political Power: Suspect Class Determinations and the Poor, 104 Cal L Rev 323, 324 (2016) (arguing that “legislators’ support for antipoverty legislation is not motivated by the political power of the poor”).
See Sitaraman, 101 Cornell L Rev at 1455–66 (cited in note 236) (reviewing relevant political science literature).
See id at 1464–65.
See Bruce A. Ackerman, Beyond Carolene Products, 98 Harv L Rev 713, 729–31 (1985) (pointing out that “the poor are both relatively anonymous and diffuse” and therefore politically vulnerable). “Perhaps because Ackerman focused on constitutional law, he overlooked the possibility of protecting such groups in other areas.” Jonathan Zasloff, Courts in the Age of Dysfunction, 121 Yale L J Online 479, 495 (2012).
See Einer Elhauge, Statutory Default Rules: How to Interpret Unclear Legislation 168–87 (Harvard 2008).
That conclusion finds support in leading theories of statutory interpretation. For instance, Professor Einer Elhauge has argued in favor of “preference-eliciting default rules,” which would place the burden of legislative correction on groups who are more able to correct judicial errors.241
Elhauge’s case for “preference-eliciting default rules” includes an argument for construing statutes against the interests of the politically empowered on the theory that they will be better able to lobby Congress to state its preferences more clearly. See id.
See Jonathan R. Macey, Promoting Public-Regarding Legislation through Statutory Interpretation: An Interest Group Model, 86 Colum L Rev 223, 238–40 (1986). Macey’s approach is designed to counterbalance the influence of focused interest groups that lobby in favor of their own economic interests, at the public’s expense. See also id at 228 n 29 (noting by way of example that a statute promoting the interests of “the poor” would likely qualify as “public-regarding”).
See Cass R. Sunstein, Interpreting Statutes in the Regulatory State, 103 Harv L Rev 405, 473–74 (1989) (raising the possibility of “aggressive statutory construction to ensure against irrational or arbitrary deprivations of benefits”).
Zasloff, 121 Yale L J Online at 495 n 66 (cited in note 239). Zasloff also noted that Sunstein “offered no process justification” for his “welfare rights” canon. Id, citing William N. Eskridge Jr, Philip P. Frickey, and Elizabeth Garrett, Cases and Materials on Legislation: Statutes and the Creation of Public Policy 949 (West 4th ed 2007).
See Zasloff, 121 Yale L J Online at 495–98 (cited in note 239).
The equal right principle can help. As a federal statute, the equal right principle supplies a sound foundation in positive law for adopting a canon in favor of economic equality.246
By comparison, the equal right principle is at least as firmly grounded in law and popular norms as, say, substantive canons of interpretation rooted in federalism. For an example of a federalism canon at work, see Bond v United States, 134 S Ct 2077, 2090 (2014).
Moreover, a substantive reading of the equal right principle may be necessary to demonstrate the legal permissibility of the interpretive approaches proposed by Elhauge, Macey, Sunstein, Zasloff, and others.247
For another example, see William N. Eskridge Jr, Public Values in Statutory Interpretation, 137 U Pa L Rev 1007, 1089 (1989) (noting that “[o]ne of the marginalized groups in our society is the poor”).
This concern holds for any process-based argument that is ungrounded in the Constitution itself. As we see in Part III.D, however, there are constitutionally grounded theories in favor of erring on the side of the poor when engaged in statutory interpretation—and the equal right principle can buttress those theories as well. See notes 322–26 and accompanying text.
485 US 617 (1988).
See id at 621 (Blackmun dissenting) (emphasizing “our society’s earnest commitment to ending racial discrimination”).
[T]he claim of any litigant for the application of a rule to its case should not be influenced by the Court’s view of the worthiness of the litigant in terms of extralegal criteria. We think this is what Congress meant when it required each Justice or judge of the United States to swear to “administer justice without respect to persons, and do equal right to the poor and to the rich . . . .”251
251Id at 619, quoting 28 USC § 453.
In assuming a strict principle of formal equality, Patterson would apparently reject as “extralegal” any judicial consideration of a litigant’s race, poverty, vulnerability, or any other trait that may be pertinent to the achievement of substantive equality.252
Could the equal right principle’s use of “poor” and “rich” figuratively refer to relatively powerless and powerful groups? If so, the oath might capture noneconomic distinctions, such as race. As the main text indicates, Patterson suggests as much, as do the oath’s biblical precursors. See note 44 and accompanying text. Still, that broader reading would require additional argument, in part because the federal judicial oath—unlike its biblical precursors—expressly contrasts two economic groups.
See Part II.
See Part II. See also Soifer, 48 Wash & Lee L Rev at 393–95 (cited in note 93) (leveling a similar critique).
The equal right principle can also help refine several existing canons. Take the rule of lenity. The idea that criminal statutes should be narrowly construed has been defended as a way of providing notice while protecting politically underrepresented interests.255
See United States v Bass, 404 US 336, 348 (1971) (notice); Matthew R. Christiansen and William N. Eskridge Jr, Congressional Overrides of Supreme Court Statutory Interpretation Decisions, 1967–2011, 92 Tex L Rev 1317, 1466 (2014) (“representation-reinforcing”).
See William J. Stuntz, The Uneasy Relationship between Criminal Procedure and Criminal Justice, 107 Yale L J 1, 51 n 167 (1997); Steven K. Smith and Carol J. DeFrances, Indigent Defense *1, 4 (Bureau of Justice Statistics, Feb 1996), archived at http://perma.cc/4326-WRAJ.
Again, the idea is not to disadvantage the rich, see notes 94–96 and accompanying text, but rather to treat both rich and poor fairly—here, by preventing some wealthy defendants from sometimes receiving the double benefit of both adequate notice and lenity.
See Zachary Price, The Rule of Lenity as a Rule of Structure, 72 Fordham L Rev 885, 927 (2004) (noting that, “in general,” the Court “has tolerated broad interpretations of white collar crimes”); Justin Weitz, Note, The Devil Is in the Details: 18 U.S.C. § 666 after Skilling v. United States, 14 NYU J Legis & Pub Pol 805, 812–13 (2011) (noting that “judicial construction of . . . criminal statutes that address white-collar crime and public corruption has frequently failed to follow” the rule of lenity). See also Durland v United States, 161 US 306, 312–13 (1896) (construing ambiguity in a criminal fraud statute broadly); Carpenter v United States, 484 US 19, 27–28 (1987) (same).
The equal right principle most readily functions as a canon of interpretation when federal courts make case-specific judgments that are relevant to poverty or economic equality. For instance, many statutes providing for criminal fines raise broad, standard-like questions of whether various potential fines are excessive.259
See, for example, 18 USC § 3572 (providing for consideration of numerous factors when imposing fines, including the “defendant’s income, earning capacity, and financial resources”).
Eighth Amendment doctrine resists that consideration. See note 219 and accompanying text.
See text accompanying note 61.
But when construing rule-like statutory principles of broad applicability, federal courts must be especially cautious, because even well-intentioned efforts to advance economic equality can have unintended consequences. For instance, favoring debtors over creditors in litigation under the Bankruptcy Code might not ultimately redound to the poor’s advantage because legal rules in the area might indirectly affect the availability of credit to relatively high-risk borrowers.262
See 11 USC § 101 et seq.
See, for example, Bowen, 483 US at 600–01 (emphasizing the need for judicial deference to the political branches in spending and entitlement programs); Atkins, 472 US at 129 (same).
For a salient and recent example, consider the Supreme Court’s ruling in King v Burwell.264
135 S Ct 2480 (2015).
See id at 2482 (discussing 26 USC § 36B).
See id at 2496.
For a similar argument without reference to the federal judicial oath, see Frank I. Michelman, The Unbearable Lightness of Tea Leaves: Constitutional Political Economy in Court, 94 Tex L Rev 1403, 1408–09 (2016) (suggesting that, in King, the Court should perhaps have erred against the interpretive option that “would have denied health care benefits to certain needy individuals and families no less deserving than others to whom benefits would flow”).
See Transcript of Oral Argument, King v Burwell, Docket No 14-114, *45 (US Mar 4, 2015) (available on Westlaw at 2015 WL 916473) (Solicitor General Donald Verrilli arguing against a result that would “revoke[ ] the promise of affordable care for millions of Americans”).
See King, 135 S Ct at 2494.
See id at 2497–99 (Scalia dissenting).
The equal right principle would also have supported a broader outcome in De Sylva v Ballentine,271
351 US 570 (1956).
Id at 572.
Id at 580.
Id at 581–82.
De Sylva, 351 US at 583 (Douglas concurring).
Id at 580.
C. Governmental Interests
TOPThe equal right principle can also play an important role by establishing economic equality as a governmental interest. In a variety of contexts, federal courts have implemented constitutional rights in part by evaluating the importance of the government’s regulatory interest. The equal right principle can inform that inquiry. This approach would counsel in favor of greater judicial restraint in some regulatory areas, thereby affording the political branches greater latitude in addressing issues of economic equality.
Under current doctrine, courts often tolerate otherwise-unconstitutional conduct when the government pursues a “compelling” or “legitimate” interest via appropriately tailored means.277
See, for example, Citizens United v Federal Election Commission, 558 US 310, 340 (2010) (discussing strict scrutiny); Turner Broadcasting System, Inc v Federal Communications Commission, 520 US 180, 235 (1997) (O’Connor dissenting) (discussing intermediate scrutiny).
See Richard H. Fallon Jr, Strict Judicial Scrutiny, 54 UCLA L Rev 1267, 1321 (2007) (“[T]he Supreme Court has frequently adopted an astonishingly casual approach to identifying compelling interests.”); Note, Let the End Be Legitimate: Questioning the Value of Heightened Scrutiny’s Compelling- and Important-Interest Inquiries, 129 Harv L Rev 1406, 1408–09 (2016) (“[N]o watershed opinion has set out a clear method for determining whether any given interest is compelling, important, or merely legitimate.”).
See David A. Strauss, The Ubiquity of Prophylactic Rules, 55 U Chi L Rev 190, 198 (1988) (“[T]he most significant aspects of first amendment law can be seen as judge-made prophylactic rules that exceed the requirements of the ‘real’ first amendment.”). See also Lawrence B. Solum, Originalism and the Unwritten Constitution, 2013 U Ill L Rev 1935, 1951. For discussion of “interpretation” and “construction,” see Balkin, Living Originalism 3–6 (cited in note 153); Akhil Reed Amar, America’s Unwritten Constitution: The Precedents and Principles We Live By 216–18 (Basic 2012); Keith E. Whittington, Constitutional Construction: Divided Powers and Constitutional Meaning 1 (Harvard 1999); Lawrence B. Solum, Semantic Originalism *18–19 (Ill Pub L & Legal Theory Rsrch Papers Series, No 07-24, 2008), archived at http://perma.cc/TN7M-23ZD.But see John O. McGinnis and Michael B. Rappaport, Original Methods Originalism: A New Theory of Interpretation and the Case against Construction, 103 Nw U L Rev 751, 773 (2009) (arguing that construction can and should be avoided by following original methods).
In ascertaining compelling interests, the Court sometimes considers statutory law or defers to other government actors. See, for example, Fisher v University of Texas at Austin, 133 S Ct 2411, 2419 (2013) (“According to Grutter, a university’s ‘educational judgment that such diversity is essential to its educational mission is one to which we defer.’”), quoting Grutter v Bollinger, 539 US 306, 328 (2003); New York v Ferber, 458 US 747, 756–58 (1982) (citing widespread laws banning child pornography as evidence of a compelling interest).
See Part II.B.
Doctrine surrounding the Contract Clause affords an example.282
US Const Art I, § 10, cl 1.
See US Const Art I, § 10, cl 1 (“No state shall . . . pass any . . . Law impairing the Obligation of Contracts.”). See also Douglas W. Kmiec and John O. McGinnis, The Contract Clause: A Return to the Original Understanding, 14 Hastings Const L Q 525, 526 (1987).
290 US 398 (1934).
Id at 415–16, 447.
Id at 444–45.
See, for example, Richard A. Epstein, Toward a Revitalization of the Contract Clause, 51 U Chi L Rev 703, 737 (1984) (“The net economic consequence of the (unanticipated) deflation was to provide creditors with windfall transfers from their debtors.”).
Existing campaign finance doctrine furnishes another salient example. At present, legislative regulation of campaign contributions and expenditures is understood to implicate the First Amendment “freedom of speech.”288
US Const Amend I. See also Buckley v Valeo, 424 US 1, 44 (1976).
See Federal Election Commission v Wisconsin Right to Life, Inc, 551 US 449, 464–65 (2007) (Roberts) (plurality).
See Buckley, 424 US at 48–49.
Citizens United, 558 US at 350, quoting Buckley, 424 US at 48.
Arizona Free Enterprise Club’s Freedom Club PAC v Bennett, 564 US 721, 750 (2011), quoting Davis v Federal Election Commission, 554 US 724, 741 (2008).
If we accept the scrutiny framework that currently governs First Amendment cases,293
Which, perhaps, we should not. See, for example, Simon & Schuster, Inc v Members of the New York State Crime Victims Board, 502 US 105, 124 (1991) (Kennedy concurring in the judgment); Eugene Volokh, Freedom of Speech, Permissible Tailoring and Transcending Strict Scrutiny, 144 U Pa L Rev 2417, 2418–21 (1996). Alternative ways of evaluating First Amendment rights might reduce or change the role of construction and thereby diminish the equal right principle’s relevance in this area.
See Buckley, 424 US at 48.
558 US 310 (2010). For criticism of the ruling, see, for example, id at 471–78 (Stevens dissenting) (discussing the government’s “anti-distortion” interest); Richard L. Hasen, Plutocrats United: Campaign Money, the Supreme Court, and the Distortion of American Elections 73 (Yale 2016).
Under the logic outlined in the main text, other First Amendment restrictions on campaign finance would remain, such as the “narrow tailoring” requirement and prohibitions on illegitimate legislative purposes.
Remarkably, the Court’s campaign finance jurisprudence has already cited the equal right principle in finding a compelling interest and rejecting a First Amendment challenge. In Williams-Yulee v Florida Bar,297
135 S Ct 1656 (2015).
See id at 1662.
The same concept underlies the common law judicial oath, which binds a judge to “do right to all manner of people . . . without fear or favour, affection or ill-will,” and the oath that each of us took to “administer justice without respect to persons, and do equal right to the poor and to the rich.”299
299See id at 1666 (citations omitted), quoting 10 Encyclopaedia of the Laws of England 105 (Sweet & Maxwell 2d ed 1908) and 28 USC § 453.
The Court’s reasoning can be outlined as follows: (i) the equal right principle supports the value of judicial impartiality; (ii) judicial solicitation of campaign funds creates a risk that judges will exhibit favoritism to their donors, or be perceived to do so; (iii) therefore, there is a “compelling interest” in promoting judicial impartiality by regulating the judicial solicitation of campaign funds.300
See Williams-Yulee, 135 S Ct at 1666.
Still, Williams-Yulee invoked the equal right principle only in the context of judicial elections.301
See id.
See Part I.C.
Even without establishing that government interests are “compelling” or “legitimate” the equal right principle can do significant work in the First Amendment context simply by showing that certain interests are permissible. Take Arizona Free Enterprise Club’s Freedom Club PAC v Bennett,303
564 US 721 (2011).
Id at 727–28.
See id at 748–50.
See id at 749–50 & n 10 (adducing extrarecord evidence of an impermissible “leveling” motive on the part of the state legislature).
See Arizona Free Enterprise Club’s Freedom Club PAC, 564 US at 755–57 (Kagan dissenting).
If the equal right principle supports the propriety of governmental interests in promoting economic equality, as in the examples above, then it can also demonstrate the impropriety of other interests. Take Martin v Struthers,308
319 US 141 (1943).
Id at 148–49.
Id at 146.
More broadly, consider cases that look askance at governmental action that both implicates a fundamental right and entails economic discrimination.311
See, for example, Zablocki v Redhail, 434 US 374, 387 (1978) (invalidating a state restriction on the fundamental right to marriage in part because the restriction imposed burdens on individuals who “lack the financial means” to comply).
See, for example, id at 404 & n 5 (Stevens concurring) (quoting the equal right principle in a fundamental right to marry case).
See note 279 and accompanying text.
For discussion of markets’ properly limited social role, see note 191 and accompanying text.
Harper v Virginia Board of Elections,315
383 US 663 (1966).
Id at 666.
See id (“Voter qualifications have no relation to wealth nor to paying or not paying this or any other tax.”).
See id at 664 n 1.
See, for example, Crawford v Marion County Election Board, 553 US 181, 188–89 (2008) (plurality) (holding that a voter ID statute was not vulnerable to a facial challenge). For criticism rooted in equal right considerations, see id at 212 (Souter dissenting) (noting that the requirement to acquire identification at a Bureau of Motor Vehicles location would especially burden “[p]oor, old, and disabled voters”).
D. Protected “Class”
TOPFinally, the equal right principle could be viewed as a legislative basis for judicial engagement in areas of constitutional “underenforcement.”320
See Sager, 91 Harv L Rev at 1218 (cited in note 22).
For a possible structural implication, consider the Republican Governance Clause, also called the Guarantee Clause, which is sometimes viewed as posing nonjusticiable political questions but was originally viewed by some as a legal bulwark against aristocracy. See US Const Art IV, § 4; Luther v Borden, 48 US 1, 42 (1849); Jonathan Elliot, ed, 4 The Debates in the Several State Conventions on the Adoption of the Federal Constitution 195 (Taylor & Maury 2d ed 1854). See also Jack M. Balkin, Republicanism and the Constitution of Opportunity, 94 Tex L Rev 1427, 1428–31 (2016); Fishkin and Forbath, 94 BU L Rev at 684 (cited in note 152). Perhaps the equal right principle supports judicial implementation of republican governance via economic equality.
US Const Amend XIV (“No state shall . . . deny to any person within its jurisdiction the equal protection of the laws.”).
See, for example, Bowen v Gilliard, 483 US 587, 602–03 (1987).
See, for example, Harris v McRae, 448 US 297, 323 (1980) (emphasizing the Court’s repeated refusal to find “poverty, standing alone” to be a suspect classification). For arguments that the poor should qualify, see Mario L. Barnes and Erwin Chemerinsky, The Disparate Treatment of Race and Class in Constitutional Jurisprudence, 72 L & Contemp Probs 109, 119 (2009) (“Perhaps, however, one should need no other basis to call for closer scrutiny than the obvious truth that poverty takes on the character of a stigmatizing identity category.”); Michele Gilman, A Court for the One Percent: How the Supreme Court Contributes to Economic Inequality, 2014 Utah L Rev 389, 405–10 (arguing that poverty is intergenerational and more immutable than often believed). See also Ross and Li, 104 Cal L Rev at 380 (cited in note 236) (arguing for a test based on “interest group support, measures of political inequality, relative group voter turnout, and descriptive representation alongside favorable legislative actions to provide a more accurate assessment of a group’s political power”).
Start with San Antonio Independent School District v Rodriguez,325
411 US 1 (1973).
See Henry Rose, The Poor as a Suspect Class under the Equal Protection Clause: An Open Constitutional Question, 34 Nova L Rev 407, 407–08 (2010) (collecting citations).
See Rodriguez, 411 US at 18–20.
See id at 19.
See id at 35, 41.
Rodriguez reveals a Court struggling with its own institutional limitations. The Equal Protection Clause’s text does not clearly contemplate consideration of economic class, and that textual inaptness made it more difficult—both intellectually and politically—to do the hard work of identifying a constitutional wrong. Further, the Court believed that it lacked competence to review sophisticated questions pertaining to economic policy.330
See id at 31.
See Sager, 91 Harv L Rev at 1218 (cited in note 22) (arguing that Rodriguez rested on “arguments which support the underenforcement of the equal protection clause by the federal courts”).
See note 129 (arguing that a statute can influence constitutional law).
First, the equal right principle is specifically directed toward federal judges, rather than states or other governmental actors, and so specifically endorses judicial engagement with issues of economic equality.333
See Part I.C (discussing related history). See also 28 USC § 453.
But see note 324 and accompanying text (collecting sources arguing for broader readings of the Equal Protection Clause).
See Zivotofsky v Clinton, 566 US 189, 200–01 (2012); Chris Michel, Comment, There’s No Such Thing as a Political Question of Statutory Interpretation: The Implications of Zivotofsky v. Clinton, 123 Yale L J 253, 259–60 (2013). See also note 129 and accompanying text (collecting sources on legislative influence on constitutional rules).
Second, the equal right principle is expressly directed toward economic equality, whereas the Equal Protection Clause is not. So economic inequality is more plausibly viewed as incidental to, or even overlooked by, the Equal Protection Clause. By comparison, the equal right principle draws an explicit distinction between “the poor” and “the rich,” and so expressly contemplates the possibility of drawing distinctions between different economic classes.336
But see Rodriguez, 411 US at 19 (suggesting that “the class of disadvantaged ‘poor’ cannot be identified or defined in customary equal protection terms”).
See 28 USC § 453.
Third, the equal right principle addresses Rodriguez’s reluctance to afford special protection to activities like education that are not protected by an express constitutional right. In adverting to “equal right,” the equal right principle calls on federal courts to determine which disparities between the rich and poor undermine justice. By comparison, the constitutional phrase “equal protection of the laws” is most commonly construed in either of two ways: first, historical readings limit the Equal Protection Clause’s ambit to certain forms of “protection,” such as civil rights or security against mob violence;338
See William J. Stuntz, The Collapse of American Criminal Justice 104–06 (Belknap 2011); John Harrison, Reconstructing the Privileges or Immunities Clause, 101 Yale L J 1385, 1390 (1992).
See Harrison, 101 Yale L J at 1390 (cited in note 338), citing Yick Wo v Hopkins, 118 US 356, 369 (1886).
Given the above, a denial of “equal right” plausibly occurs when a state has distributed funding in a way that renders “the poor” much less likely than “the rich” to receive a minimally adequate public school education. In recognizing class groups as legal categories and directing federal judges to attend to them, the equal right principle addresses Rodriguez’s “threshold” concerns about recognizing “the poor” as a “class.”340
See Rodriguez, 411 US at 19–20. When implementing the equal right principle, federal courts might draw on executive branch definitions of poverty and affluence used in various programs. See, for example, Federal Poverty Guidelines (cited in note 12). For discussion of deferring to legislative action as well, see Bowen, 483 US at 600–01; Atkins, 472 US at 129.
See Rodriguez, 411 US at 19–20.
Finally, nothing in Rodriguez or any other Supreme Court precedent forecloses arguments from equal right.342
See id. See also Ross and Li, 104 Cal L Rev at 343 (cited in note 236) (“The Court, however, has never squarely addressed the status of the poor under the suspect class standard.”); Rose, 34 Nova L Rev at 419 (cited in note 326) (concluding that the Court misconstrued its own prior rulings when stating that precedent opposed treating the poor as a suspect class); Tribe, 90 Harv L Rev at 1083 (cited in note 28) (emphasizing key reservations in Rodriguez).
See Rose, 34 Nova L Rev at 408 & nn 1–2 (cited in note 326).
See Rodriguez, 411 US at 23. To wit, the Court concluded that there was no demonstrated correlation between relatively low-funded school districts and poverty, much less the kind of correlation that might support a facial claim of wealth discrimination. See id at 25. And the Court accepted the State’s representation that the school funding system was designed to promote local participation in public education, rather than to secure class favoritism. See id at 48–49.
The foregoing approach might be contrasted with Professor Frank Michelman’s classic work on protecting the poor through the Equal Protection Clause.345
See Michelman, 83 Harv L Rev at 11–12 (cited in note 31).
See id at 9–11.
See id at 14–15, 35 (discussing Rawls’s then-extant writings on justice as fairness). See also John Rawls, A Theory of Justice 60–61 (Belknap 1971). In a later work, Michelman drew on John Hart Ely’s theory of representation reinforcement, which would lead to constitutionally grounded conclusions akin to the statutory ones laid out in Part III.C. See note 248 and accompanying text. See also Frank I. Michelman, Welfare Rights in a Constitutional Democracy, 1979 Wash U L Q 659, 666–85 (1979). But see John Hart Ely, Democracy and Distrust: A Theory of Judicial Review 148, 162 (Harvard 1980) (discussing difficulties regarding protected status to the poor).
See Michelman, 83 Harv L Rev at 16–17 (cited in note 31) (acknowledging the incongruity between the Equal Protection Clause and assertions of minimum entitlements). See also Winter, 1972 S Ct Rev at 87 (cited in note 29) (“If the Equal Protection Clause requires absolute equality . . . the equality thus brought about seems to be within each state, not between them.”); id at 89 (“The language of the Equal Protection Clause thus seems at best very badly suited, at worst plainly hostile, to the objectives of equality under discussion.”).
See text accompanying notes 338–39.
See Michelman, 83 Harv L Rev at 12–14 (cited in note 31).
See id at 29–30 (discussing “just wants”).
More fundamentally, the equal right principle is rooted in a statute and so is not wedded to Rawlsian political philosophy or any other deep philosophical position on the essential elements of a just society.352
For an alternative, deep account that focuses on vulnerability and dependency and is therefore arguably more consonant with the equal right principle’s emphasis on judicial action, see Robert E. Goodin, Reasons for Welfare: The Political Theory of the Welfare State 165–83 (Princeton 1988).
See Liu, 61 Stan L Rev at 210–11, 232–33 (cited in note 28) (criticizing Michelman for relying on a comprehensive theory of justice, rather than contingent political agreement). See also Cass R. Sunstein, Incompletely Theorized Agreements, 108 Harv L Rev 1733, 1735 (1995).
See Monaghan, 13 Harv CR–CL L Rev at 128 (cited in note 29). John Rawls himself did not present his theory of justice as a prescriptive account of judicial action. For more on Michelman’s effort to link Rawls’s work with judicial action, see Frank I. Michelman, In Pursuit of Constitutional Welfare Rights: One View of Rawls’ Theory of Justice, 121 U Pa L Rev 962, 1013–15 (1973).
See Part II.B. In later work, Michelman embraced a similarly interstitial role for positive welfare rights. See Michelman, 121 U Pa L Rev at 1013–15 (cited in note 354).
See notes 129 and 156 and accompanying text.
Ultimately, the equal right principle does not eliminate room for debate on whether or how to extend economic groups protection under the Equal Protection Clause.357
See text accompanying notes 185–87 (noting that promissory constitutionalism does not aim to guarantee any particular deliberative outcome).
See, for example, notes 324, 347, and accompanying text (collecting sources).
See text accompanying note 263.
Economic inequality is a salient topic in American politics, fostering a widespread if controversial sense that class should play a greater role in constitutional law. But discussion about class and the Constitution has largely overlooked that there is already an authoritative directive that federal courts attend to economic equality: the statutory oath of office taken by every federal judge.
By law, federal judges must swear or affirm that they will “do equal right to the poor and to the rich.” This evocative statute and promise suggest that federal judges should adopt interstitial means of promoting substantive economic equality. For example, federal judges might strengthen counsel rights, construe ambiguous statutes in favor of the least advantaged, and recognize the legitimacy of legislative efforts to secure economic equality in campaign finance.
In addition, the equal right principle provides a platform for public contestation on matters of economic equality, including by judges, presidents, senators, and, ultimately, the public at large. There are many reasonable views of what economic justice requires of federal judges, and an auspicious first step toward choosing among them is to talk about the equal right principle—particularly when selecting judges who would commit themselves to the federal judicial oath.
- 128 USC § 453.
- 2See Nomination of John G. Roberts Jr to Be Chief Justice of the United States, Hearing before the Senate Committee on the Judiciary, 109th Cong, 1st Sess 448 (2005) (“Roberts Hearings”). Roberts also referred to the phrase “Equal Justice Under Law.” See notes 233–34 and accompanying text.
- 3Roberts Hearings, 109th Cong, 1st Sess at 448–49 (cited in note 2).
- 4Id at 449.
- 5See id at 448–49.
- 61 Stat 73.
- 7Judiciary Act of 1789 § 8, 1 Stat at 76, 28 USC § 453.
- 8Federal judges also take the general federal oath to “support and defend the Constitution.” 5 USC § 3331.
- 9The Book of Oaths and the Several Forms Thereof, Both Ancient and Modern 176 (1689). See also Part I.B.
- 10See Part I.A. See also Alvin K. Hellerstein, The Influence of a Jewish Education and Jewish Values on a Jewish Judge, 29 Touro L Rev 517, 525 (2013) (noting that the federal judicial oath “resonates Biblically”).
- 11See notes 91–92 and accompanying text.
- 12To the extent that the equal right principle requires a working definition of “the poor” and “the rich,” other sources of federal law supply useful benchmarks. See, for example, San Antonio Independent School District v Rodriguez, 411 US 1, 19–20 (1973) (identifying the poor as those who “because of their impecunity [ ] were completely unable to pay for some desired benefit, and as a consequence, they sustained an absolute deprivation of a meaningful opportunity to enjoy that benefit”); US Department of Health and Human Services, U.S. Federal Poverty Guidelines Used to Determine Financial Eligibility for Certain Federal Programs (Jan 26, 2017), archived at http://perma.cc/LR6J-YL46.
- 13See Aviam Soifer, Law and the Company We Keep 134, 167 (Harvard 1995).
- 14See, for example, Patterson v McLean Credit Union, 485 US 617, 619 (1988) (per curiam) (interpreting the equal right principle as requiring that the Court treat all litigants equally, without regard to the worthiness of the litigant in terms of extralegal criteria), which is discussed in Part III.B. See also Original Great American Chocolate Chip Cookie Co v River Valley Cookies, Ltd, 970 F2d 273, 282 (7th Cir 1992) (Posner) (noting “the judicial oath, which, echoing Deuteronomy, requires judges to judge ‘without respect to persons,’” and arguing that “[t]he idea that favoring one side or the other in a class of contract disputes can redistribute wealth is one of the most persistent illusions of judicial power”); West v Louisiana, 478 F2d 1026, 1033 (5th Cir 1973) (“To ‘administer justice without respect to persons, and do equal right to the poor and to the rich’ we must apply the same standard, whether counsel be court-appointed or privately retained.”), quoting 28 USC § 453.
- 15See 28 USC § 453. See also 5 USC § 3331 (general federal oath).
- 16See notes 157–59, 249–54.
- 17See, for example, Erickson v Pardus, 551 US 89, 94 (2007) (“A document filed pro se is ‘to be liberally construed.’”), quoting Estelle v Gamble, 429 US 97, 106 (1976); 28 USC § 1915 (outlining procedures for in forma pauperis filings).
- 18See Part III.A.
- 19See Part III.B. This suggestion requires a definition of “the poor,” perhaps drawn from federal law. See note 12.
- 20See Parts III.C–D.
- 21See Part III.C.
- 22See Lawrence Gene Sager, Fair Measure: The Legal Status of Underenforced Constitutional Norms, 91 Harv L Rev 1212, 1218 (1978) (arguing that Rodriguez rested on “arguments which support the underenforcement of the equal protection clause by the federal courts”).
- 23See, for example, Griffin v Illinois, 351 US 12, 16–19 (1956) (Black) (plurality) (citing a biblical version of the equal right principle in holding that “[d]estitute defendants must be afforded as adequate appellate review as defendants who have money enough to buy transcripts”); United States v Cilins, 2013 WL 3802012, *3 (SDNY) (concluding that the equal right principle “is violated if a defendant, who is a serious risk of flight . . . is permitted to buy his way out of detention”), citing 28 USC § 453; Williams-Yulee v Florida Bar, 135 S Ct 1656, 1666 (2015) (quoting the equal right principle while upholding a state rule prohibiting judicial candidates from personally soliciting campaign funds).
- 24See Part II.A.
- 25See notes 49, 57–61, and accompanying text.
- 26See Part II.B.
- 27See notes 2–4 and accompanying text. See also, for example, Nomination of Elena Kagan to Be an Associate Justice of the Supreme Court of the United States, Hearing before the Senate Committee on the Judiciary, 111th Cong, 2d Sess 231 (2010) (“Kagan Hearings”); Nomination of Judge Sandra Day O’Connor of Arizona to Serve as an Associate Justice of the Supreme Court of the United States, Hearings before the Senate Committee on the Judiciary, 97th Cong, 1st Sess 57–58 (1981) (“O’Connor Hearings”).
- 28Scholars have used the term “interstitial” to describe certain judicial efforts to enforce economic rights, particularly by providing that legislatively constructed benefits programs do not engage in unjustifiable wealth discrimination. See, for example, Goodwin Liu, Rethinking Constitutional Welfare Rights, 61 Stan L Rev 203, 215, 244–45 (2008); Laurence H. Tribe, Unraveling National League of Cities: The New Federalism and Affirmative Rights to Essential Government Services, 90 Harv L Rev 1065, 1089–90 (1977); Frank I. Michelman, In Pursuit of Constitutional Welfare Rights: One View of Rawls’ Theory of Justice, 121 U Pa L Rev 962, 1013–15 (1973). Here, I use “interstitial” more broadly to mean an interpretive principle that guides judges in areas of legal underdeterminacy.
- 29For leading critiques of constitutional welfare rights, including on grounds of unintended consequences and judicial incompetence on matters of economic policy, see Frank B. Cross, The Error of Positive Rights, 48 UCLA L Rev 857, 902–05, 910–12 (2001); Henry Paul Monaghan, The Constitution Goes to Harvard, 13 Harv CR–CL L Rev 117, 118–20, 128 (1978); Ralph K. Winter Jr, Poverty, Economic Equality, and the Equal Protection Clause, 1972 S Ct Rev 41, 43, 93–97. Much of this literature takes aim at proposals to achieve wealth “redistribution,” rather than equal right.
- 30See, for example, Zachary Liscow, Note, Reducing Inequality on the Cheap: When Legal Rule Design Should Incorporate Equity as Well as Efficiency, 123 Yale L J 2478, 2483–85 (2014).
- 31See, for example, Frank I. Michelman, The Supreme Court 1968 Term—Foreword: On Protecting the Poor through the Fourteenth Amendment, 83 Harv L Rev 7, 9 (1969). For a theory built on republican government, see Jon D. Michaels, Note, To Promote the General Welfare: The Republican Imperative to Enhance Citizenship Welfare Rights, 111 Yale L J 1457, 1459–60, 1498 (2002). For more discussion of the evolving scholarly treatment of poverty rights during the last fifty years, see generally Mark A. Graber, The Clintonification of American Law: Abortion, Welfare, and Liberal Constitutional Theory, 58 Ohio St L J 731 (1997).
- 32The best critics of constitutionalizing economic equality recognize that some accommodation for the poor may be practicable. See Cross, 48 UCLA L Rev at 923 (cited in note 29) (“It is possible that some particular right, or some circumstances, might escape this critique.”); Winter, 1972 S Ct Rev at 85 (cited in note 29) (“To reject general and substantial redistributions, however, is not to reject all redistributions.”).
- 33See, for example, Stephen Long, US Election: Trump Victory a Working-Class Backlash against Economic Inequality (ABC News, Nov 9, 2016), archived at http://perma.cc/NT8T-PLP6;Joseph Fishkin, The Mirror (Balkinization, Nov 9, 2016), archived at http://perma.cc/9C2M-PLRV(noting “the economic populism that was one crucial thread of Trump’s appeal”); Robert Kuttner, Sanders, Trump, and Economic Populism: Why Populists in Both Parties Are Gaining Support (American Prospect, Jan 12, 2016), archived at http://perma.cc/HT58-5SRQ;Kate Linthicum, Occupy Movement Protesters Fight On—Now in Support of Bernie Sanders (LA Times, Feb 1, 2016), archived at http://perma.cc/56ZX-TQW2;Dan Merica, Clinton: I Will Introduce Campaign Finance Amendment in First 30 Days (CNN, July 16, 2016), archived at http://perma.cc/86BC-RTXE.
- 34For discussion of the Equal Protection Clause, see Part III.D.
- 35See, for example, Cass R. Sunstein, Why Does the American Constitution Lack Social and Economic Guarantees?, in Michael Ignatieff, ed, American Exceptionalism and Human Rights 90, 92 (Princeton 2005) (“The constitutions of most nations create social and economic rights, whether or not they are enforceable. But the American Constitution does nothing of the kind.”); William E. Forbath, The New Deal Constitution in Exile, 51 Duke L J 165, 168 (2001) (“These social and economic rights are found in most of the world’s constitutions; but they are foreign to contemporary American constitutional law.”). But see Stephen Gardbaum, The Myth and the Reality of American Constitutional Exceptionalism, 107 Mich L Rev 391, 446–53 (2008) (arguing that US exceptionalism in this area can be overstated).
- 36See Liu, 61 Stan L Rev at 212 (cited in note 28) (“Judicial recognition of welfare rights must derive its legitimacy from our shared commitments. . . . [W]e cannot hope to change our law without first doing the hard work of changing our politics.”). See also K. Sabeel Rahman, Domination, Democracy, and Constitutional Political Economy in the New Gilded Age: Towards a Fourth Wave of Legal Realism?, 94 Tex L Rev 1329, 1332 (2016) (noting, in the context of economic equality, the relationship between “the ‘big-C’ Constitutionalism of Supreme Court doctrine, precedent, or textual interpretation” and the “‘small-c’ . . . constitutionalism” of “social movements” and “public philosophy”).
- 37For treatment of broader historical issues regarding how money should or does influence judicial behavior, see John T. Noonan Jr, Bribes 83–113, 313–33, 534–53 (Macmillan 1984). For discussion of Founding-era views on corruption, see Zephyr Teachout, The Anti-Corruption Principle, 94 Cornell L Rev 341, 373–79 (2009).
- 38See Hellerstein, 29 Touro L Rev at 525 (cited in note 10); Original Great American Chocolate Chip Cookie Co v River Valley Cookies, Ltd, 970 F2d 273, 282 (7th Cir 1992) (Posner); William H. Pryor Jr, The Religious Faith and Judicial Duty of an American Catholic Judge, 24 Yale L & Pol Rev 347, 353 (2006) (“My oath to ‘administer justice without respect to persons, and do equal right to the poor and to the rich’ clearly echoes the Catechism’s aforementioned command to respect the ‘rights of everyone, especially of families and the disadvantaged.’”), quoting Catechism of the Catholic Church ¶ 2237, archived at http://perma.cc/3J72-S4RT.See also text accompanying note 223.
- 39See Mark A. Noll, America’s God: From Jonathan Edwards to Abraham Lincoln 18 (Oxford 2002) (“[S]criptural quotations are taken from the King James Version, which was the Bible of choice for almost all Americans throughout the decades treated in this book.”). For a good introduction to the Hebrew text, see Baruch A. Levine, The JPS Torah Commentary: Leviticus 128–29 (Jewish Publication Society 1989).
- 40Exodus 23:3, 23:6 (King James Version).
- 41Leviticus 19:15 (King James Version).
- 42See Jonathan Magonet, The Structure and Meaning of Leviticus 19, 7 Hebrew Ann Rev 151, 156–58 (1983).
- 43Deuteronomy 1:17 (King James Version).
- 44See Magonet, 7 Hebrew Ann Rev at 156–58 (cited in note 42); Nobuyoshi Kiuchi, Leviticus 352 (InterVarsity 2007) (suggesting that Leviticus 19:15 “prohibits partiality in matters of judgment motivated by the social status of the person being judged”). For discussion of the equal right principle’s potential applicability to noneconomic groups, see note 252 and accompanying text.
- 45See, for example, Kiuchi, Leviticus at 352 (cited in note 44) (calling Leviticus 19:15 “[a] prohibition against injustice in court”).
- 46See Rashi, The Complete Tanach with Rashi’s Commentary (Chabad-Lubavitch) (Rosenberg, trans), archived at http://perma.cc/4ZSV-L9EG(commenting that Deuteronomy 1:17 “refers to the person who appoints judges”).
- 47See, for example, Leviticus 25:25, 25:35–41; Deuteronomy 15:7–11.
- 48See, for example, 1 Kings 3:16–28 (King James Version) (recounting the judgment of Solomon). Many commentators have viewed the biblical equal right principles as general or “generic” directives to do “justice.” See, for example, Pietro Bovati, Re-Establishing Justice: Legal Terms, Concepts and Procedures in the Hebrew Bible 188–91 (JSOT 1994). See also Elliot N. Dorff, To Do the Right and the Good: A Jewish Approach to Modern Social Ethics 139 n 40 (Jewish Publication Society 2002) (“The poor, though, were not to be preferred in their cases just because they were poor any more than the rich were to be given special consideration just because they were rich; rather, fairness to all litigants was to be the rule.”); Bruce V. Malchow, Social Justice in the Hebrew Bible: What Is New and What Is Old 24 (Liturgical 1996).
- 49See Maimonides, Mishneh Torah, Law of Courts (Sanhedrin) 21:1–3 (Elliot N. Dorff and Arthur Rosett, trans), in Elliot N. Dorff and Arthur Rosett, A Living Tree: The Roots and Growth of Jewish Law 282, 283–84 (SUNY 1988). Further, judges were sometimes to assist unlearned or inarticulate parties in making their arguments. See id. These principles operated in an inquisitorial legal system in which judges were also viewed as lawgivers. For discussion of how similar judicial principles might operate within the adversarial US legal system, see notes 225–29 and accompanying text.
- 50Edward Coke, The Fourth Part of the Institutes of the Laws of England 88 (Flesher 1644).
- 51Book of Oaths at 120–21 (cited in note 9). See also John Fortescue, De Laudibus Legum Angliae 194–95 (Cambridge 1825) (A. Amos, trans).
- 52See Book of Oaths at 176 (cited in note 9).
- 53See id at 118, 211. For example, the law provided the following as to the Mayor of London: “And ye shall truely and right wisely treat the people of your Bayly, and right ye shall do to every person, as well to Stranger as to privy, to poor as to rich, in that that belongeth to you for to do.” Id at 211.
- 54Philip Hamburger, Law and Judicial Duty 110 (Harvard 2008). See also Emilio M. Garza, Judicial Duty and the Future: Two Issues of Fundamental Law, 6 J L Phil & Culture 147, 149 (2011) (agreeing with Hamburger that common-law judges “understood their duty to include an obligation to make decisions in accord with the law of the land, including the Constitution, although their oath did not make this commitment express”). Judge Emilio M. Garza further argued that the common-law judges’ “express emphasis in the oath on fairness indicates that the common-law judges viewed their commitment to the law of the land in terms other than pure positivism.” Id.
- 55Hamburger, Law and Judicial Duty at 111 (cited in note 54).
- 56Id.
- 57For more on Magna Carta’s prohibition on punitive impoverishment, see Beth A. Colgan, Reviving the Excessive Fines Clause, 102 Cal L Rev 277, 321–22 (2014) (discussing Blackstone’s Commentaries).
- 58Scott F. Llewellyn and Brian Hawkins, Taking the English Right to Counsel Seriously in American “Civil Gideon” Litigation, 45 U Mich J L Ref 635, 641–42 (2012), quoting An Act to Admit Such Persons as Are Poor to Sue in Forma Pauperis, 11 Hen 7 ch 12 (1495), reprinted in 2 Statutes of the Realm 499, 578 (1816) (with some modifications for modernization). See also Scott L. Cummings, The Politics of Pro Bono, 52 UCLA L Rev 1, 10 n 36 (2004).
- 59Thomas, Lord Ellesmere, Certaine Observations Concerning the Office of the Lord Chancellor 21 (1651). See also Dennis R. Klinck, Conscience, Equity and the Court of Chancery in Early Modern England 19–20 (Ashgate 2010):
Conscience is certainly presented as a necessary complement to law, and its function here is consistent with that aspect of Chancery jurisdiction which provided recourse to petitioners whose adversaries were too rich or powerful to allow them to get a remedy at law, although less clearly with that aspect of the jurisdiction which involved qualification of “strict law.”
See also A.H. Marsh, History of the Court of Chancery and of the Rise and Development of the Doctrines of Equity 14–15, 47–49 (Carswell 1890) (describing Chancery as “the secret closett of his Majesty’s conscience where his oppressed and distressed subjects hope to find mercy and mitigation against the rigour and extremitye of his lawes” and noting that the Chancellor “Afforded Protection to the Poor and Weak”).
- 60Thomas O. Main, Traditional Equity and Contemporary Procedure, 78 Wash L Rev 429, 441 n 69 (2003).
- 61Willard Barbour, Some Aspects of Fifteenth-Century Chancery, 31 Harv L Rev 834, 856 (1918) (describing “one class of cases which come into chancery because of the inequality of the parties” on the theory that a party’s “adversary may be very rich and powerful, and it will be hopeless to proceed in the ordinary courts”). See also Wesley Newcomb Hohfeld, The Relations between Equity and Law, 11 Mich L Rev 537, 561 (1913) (“In many cases the poverty of the plaintiff is urged as the sole reason why the chancellor should interfere.”); Main, 78 Wash L Rev at 441 n 69 (cited in note 60).
- 62For example, the phrase “a jury of one’s peers” originally conveyed the idea that a jury should be composed of persons from the same social class as the accused. See Theodore F.T. Plucknett, A Concise History of the Common Law 203–04 (Butterworth 1956).
- 63See Henry Home of Kames, Principles of Equity 244–45 (Neill 4th ed 1800) (originally published 1760).
- 64Id.
- 65Id.
- 66Later, US courts would be on guard lest equity be used to oppress the poor. See Whalen v Union Bag and Paper Co, 208 NY 1, 5 (1913) (rejecting a result that would “deprive the poor litigant of his little property by giving it to those already rich”). See also generally John Leland Mechem, The Peasant in His Cottage: Some Comments on the Relative Hardship Doctrine in Equity, 28 S Cal L Rev 139 (1955).
- 67US Const Art VI, cl 3.
- 68For example, Delegate James Wilson of Pennsylvania said of oaths that “[a] good government did not need them, and a bad one could not or ought not be supported.” Jonathan Elliot, ed, Debates on the Adoption of the Federal Constitution 352 (Lippincott 2d ed 1881).
- 69See Steve Sheppard, What Oaths Meant to the Framers’ Generation: A Preliminary Sketch, 2009 Cardozo L Rev De Novo 273, 277, 283.
- 70Act of June 1, 1789, 1 Stat 23. See also Department of Transportation v Association of American Railroads, 135 S Ct 1225, 1235 n * (2015) (Alito concurring).
- 71See Act of June 1, 1789 §§ 1, 3, 1 Stat at 23–24. The First Congress separately prohibited bribes. See Peter W. Bowie, The Last 100 Years: An Era of Expanding Appearances, 48 S Tex L Rev 911, 912–13 (2007).
- 72See, for example, 1 Annals of Cong 277–82 (May 6, 1789). See also David P. Currie, The Constitution in Congress: The Federalist Period, 1789–1801 13–15 (Chicago 1997).
- 73Act of June 1, 1789 § 1, 1 Stat at 23.
- 745 USC § 3331:
I, AB, do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter. So help me God.
- 75Debate on the Act included concern for the poor. See, for example, 1 Annals of Cong 851 (Aug 31, 1789) (statement of Rep Smith) (supporting a statutory jurisdictional amount so that “the poor will be protected from being harassed by appeals to the Supreme Court”).
- 76Judiciary Act of 1789 § 8, 1 Stat at 76. The First Congress has often been treated as “a sort of continuing constitutional convention,” because of the Founders who composed it and the fundamentality of its decisions. David P. Currie, The Constitution in Congress: Substantive Issues in the First Congress, 1789–1791, 61 U Chi L Rev 775, 777 (1994).
- 77Judiciary Act of 1789 § 8, 1 Stat at 76.
- 78Judiciary Act of 1789 § 8, 1 Stat at 76. See also Ross E. Davies, William Cushing, Chief Justice of the United States, 37 U Toledo L Rev 597, 599–600 (2006) (“The Judiciary Act did not formulate the oath as a command, but rather as a condition on the performance of the duties for which a Chief Justice (or other federal judge) had been commissioned.”). Davies further notes “that the modern Supreme Court includes on its Court Roster only those who have ‘taken the prescribed oaths.’” Id at 600.
- 79Judiciary Act of 1789 § 8, 1 Stat at 76. This oath both borrows from and adds to the British judicial oaths while excluding those oaths’ promise not to take bribes. See John T. Noonan Jr, Judicial Impartiality and the Judiciary Act of 1789, 14 Nova L Rev 123, 124 (1989). The federal judicial oath also borrows the biblical phrase “without respect of persons” from the Virginia chancellor’s oath authored by George Wythe. See Noonan, Bribes at 428 (cited in note 37). See also Acts 10:34 (King James Version) (Saint Peter famously declaring: “I perceive that God is no respecter of persons”); Romans 2:11 (King James Version).
- 805 US (1 Cranch) 137 (1803).
- 81See id at 180 (quoting the federal judicial oath). For Marshall’s endorsement of the oath’s constitutionality as necessary and proper, see M‘Culloch v Maryland, 17 US 316 (4 Wheat), 416 (1819).
- 82Judiciary Act of 1789 § 8, 1 Stat at 76.
- 83See 28 USC § 453. For the full text of the current oath, see text accompanying note 1. Committee reports on § 453 shed little light on the equal right principle’s meaning.
- 84For example, the phrase “agreeably to” has now been replaced with the modern expression “under.” See Judicial Improvements Act of 1990 § 404, Pub L No 101-650, 104 Stat 5089, 5124, codified at 28 USC § 453. As a result, the affected phrase now appears to modify “duties” rather than “perform.”
- 85See Judicial Improvements Act of 1990 § 404, 104 Stat at 5124, 28 USC § 453.
- 86Similar qualifying language (“to the best of my ability”) appears in the presidential oath set out in Article II of the Constitution, which persisted in the document despite James Wilson’s motion to strike it during the Constitutional Convention. See US Const Art II, § 1, cl 8 (laying out the presidential oath); Philip B. Kurland and Ralph Lerner, eds, 3 The Founder’s Constitution 573–74 (Chicago 1987) (quoting James Madison’s Journal). For the idea of a “mental reservation,” see note 142.
- 87Robert W. Kastenmeier and Michael J. Remington, Judicial Discipline: A Legislative Perspective, 76 Ky L J 763, 792 (1988). Robert W. Kastenmeier was on the House Judiciary Committee, and this article was entered into the record on Pub L No 101-650. See Judicial Improvements Act of 1990, Hearings before the Subcommittee on Courts, Intellectual Property, and the Administration of Justice of the House Committee on the Judiciary, 101st Cong, 1st Sess 134 (1989).
- 88See text accompanying notes 76–78.
- 89See, for example, Cal Const Art XX, § 3; NY Const Art XIII, § 1; Fla Const Art II, § 5; Va Const Art II, § 7; Mich Const Art XI, § 1; Okla Const Art XV, § 1. However, there are significant exceptions. See, for example, Pruett v Mississippi, 574 So 2d 1342, 1363 n 33 (Miss 1990) (Anderson dissenting) (discussing Mississippi’s equal right principle), citing Miss Const Art 6, § 155. See also Philip Fahringer, Equal Protection and the Indigent Defendant: Griffin and Its Progeny, 16 Stan L Rev 394, 394–95 (1964) (“The vast majority of our states included in their constitutions provisions adopting the ideal of equal justice for all.”).
- 90See note 23.
- 91See Paul Horwitz, Judicial Character (and Does It Matter), 26 Const Commen 97, 163 (2009) (noting “[t]he short but sweeping language of the federal judicial oath”).
- 92See J.A. Simpson and E.S.C. Weiner, eds, 13 Oxford English Dictionary 922–23 (Clarendon 2d ed 1989) (collecting historical usages of the term “right”); Noah Webster, 2 An American Dictionary of the English Language “right, n” (Converse 1828); Samuel Johnson, 2 A Dictionary of the English Language “right, n” (Strahan 1755) (first definition of right, n: “Justice”). Even the legalistic (second-listed) definition of “right” in Webster’s original Dictionary expressly blurs consideration of legal and nonlegal factors: “When laws are definite, right and wrong are easily ascertained and understood,” but when matters are “left without positive law, we are to judge what is right by fitness or propriety, by custom, civility or other circumstances.” Webster, 2 American Dictionary at “right, n” (cited in note 92) (emphasis omitted).
- 93See Joan B. Gottschall, Factfinding as a Spiritual Discipline, 4 U St Thomas L J 325, 335–36 (2006) (“Insofar as an accurate assessment of reality causes a decision-maker to decide in favor of the less powerful person, the decision-maker is simply doing what the oath of federal judges requires: to ‘do equal right to the poor and to the rich.’”); Walter Kendall, Reflections on Judicial Review and the Plight of the Poor in a World Where Nothing Works, 37 John Marshall L Rev 555, 572 n 94 (2004) (glossing the oath: “Do not deny the rich what is theirs by right; but make sure the poor actually receive equal right without regard to their poverty”); James D. Gordon III, Book Review, Cardozo’s Baseball Card, 44 Stan L Rev 899, 907 (1992) (responding to Judge Richard Posner’s formalist invocation of the equal right principle: “It is not ‘bending the rules’ at all to treat unequal things unequally”); Aviam Soifer, On Being Overly Discrete and Insular: Involuntary Groups and the Anglo-American Judicial Tradition, 48 Wash & Lee L Rev 381, 394 (1991) (denying that the oath “rejects a basic point made by John Winthrop . . . : ‘If the same penalty hits a rich man, it pains him not, it is not affliction to him, but if it lights upon a poor man, it breaks his back’”).
- 94Efforts to promote justice are not zero-sum, so promoting justice for one party does not necessitate injustice for another. For example, rights to criminal counsel, see text accompanying notes 227–30, do not unfairly harm “the rich,” and may not adversely affect rich litigants at all.
- 95But see generally Harrison Bergeron, in Kurt Vonnegut, Welcome to the Monkey House 7 (Dell 1968).
- 96See H.L.A. Hart, The Concept of Law 155–59 (Clarendon 1961) (proposing the Aristotelian idea that justice is treating like cases alike).
- 97Justice Felix Frankfurter once quoted Nobel Laureate Anatole France—“The law in its majestic equality, forbids the rich as well as the poor to sleep under bridges, to beg in the streets, and to steal bread”—in objecting to a “ruthless consequence, inevitably resulting from a money hurdle erected by a State.” Griffin v Illinois, 351 US 12, 23 (1956) (Frankfurter concurring in the judgment).
- 98See Soifer, Law and the Company We Keep at 134, 167 (cited in note 13).
- 99For an argument on the importance of having the word “poor” precede the word “rich,” see 75th Cong, 1st Sess, in 81 Cong Rec 9089 (Aug 17, 1937) (statement of Sen Connally) (quoting the equal right principle and asserting: “They put the poor first. If there is any difference, they give the seniority to the poor”).
- 100See, for example, Lowe v Securities and Exchange Commission, 472 US 181, 207 n 53 (1985) (“[W]e must give effect to every word that Congress used in the statute.”); Montclair v Ramsdell, 107 US 147, 152 (1883) (“It is the duty of the court to give effect, if possible, to every clause and word of a statute.”). See also Ernst Freund, Interpretation of Statutes, 65 U Pa L Rev 207, 218 (1917) (“[T]he legislator is presumed to . . . choose his words deliberately intending that every word shall have a binding effect.”).
- 101See 28 USC § 453. See also note 15 and accompanying text.
- 102Federal judges also take the general federal oath to “support and defend the Constitution.” 5 USC § 3331. And the federal judicial oath promises compliance with all “duties incumbent upon me as ___ under the Constitution and laws of the United States.” 28 USC § 453.
- 103But see William E. Nelson, History and Neutrality in Constitutional Adjudication, 72 Va L Rev 1237, 1260–61 (1986) (linking the equal right principle to the “classical liberal tradition of judicial neutrality”).
- 104Raymond J. McKoski, Reestablishing Actual Impartiality as the Fundamental Value of Judicial Ethics: Lessons from “Big Judge Davis”, 99 Ky L J 259, 324 (2011) (asserting that the federal judicial oath contains three “repetitive statements about administering justice impartially”).
- 105See Arlington Central School District Board of Education v Murphy, 548 US 291, 299 n 1 (2006) (“[I]nstances of surplusage are not unknown.”); Abbe R. Gluck and Lisa Schultz Bressman, Statutory Interpretation from the Inside—an Empirical Study of Congressional Drafting, Delegation, and the Canons: Part I, 65 Stan L Rev 901, 933–36 (2013) (adducing evidence that Congress engages in redundancy).
- 106William Shakespeare, Macbeth Act IV, Scene I (Penguin 2000). See also Brett M. Kavanaugh, Book Review, Fixing Statutory Interpretation, 129 Harv L Rev 2118, 2161–62 (2016) (quoting Macbeth in discussing statutory redundancy).
- 10728 USC § 453. For full text, see text accompanying note 1. This phrase, too, is biblical, see Acts 10:34 (Saint Peter famously declaring: “I perceive that God is no respecter of persons”); Romans 2:11, and has a long history in Anglo-American law, see James Q. Whitman, Harsh Justice: Criminal Punishment and the Widening Divide between America and Europe 41–42 (Oxford 2003); Richard M. Re and Christopher M. Re, Voting and Vice: Criminal Disenfranchisement and the Reconstruction Amendments, 121 Yale L J 1584, 1595 nn 53–54, 1662 n 425 (2012) (using “formal equality” to mean desert-based fairness).
- 108See Re and Re, 121 Yale L J at 1662 n 425 (cited in note 107). Thomas Aquinas took a similar view, contrasting “respect for persons” with fair considerations. See Thomas Aquinas, Summa Theologica II-II, Q 63, Art 1 at 187 (Benziger 1918) (“Respect of persons is opposed to distributive justice.”). Commentators who view the clauses as having similar meanings disagree as to whether both or neither clause call for substantive equality. Compare notes 14, 32, with 156, 194, 227.
- 10928 USC § 453.
- 110See Part I.
- 111See William N. Eskridge Jr, Dynamic Statutory Interpretation, 135 U Pa L Rev 1479, 1481 (1987) (arguing that “original legislative expectations should not always control statutory meaning” and that “[t]his is especially true when the statute is old and generally phrased and the societal or legal context of the statute has changed in material ways”). See also William N. Eskridge Jr, Dynamic Statutory Interpretation 125–27 (Harvard 1994) (discussing changed social contexts and legal rules). The Supreme Court routinely acknowledges “that a statute can be applied in situations not expressly anticipated by Congress,” at least provided that the statute exhibits textual “breadth.” Pennsylvania Department of Corrections v Yeskey, 524 US 206, 212 (1998) (quotation marks omitted).
- 112The basic approach to statutory interpretation outlined in the main text and referenced in note 111 parallels similar approaches in constitutional theory, calling to mind Professor Ronald Dworkin’s distinction between concepts and conceptions, “new originalism,” and other dynamic modes of constitutional argument. See, for example, Ronald Dworkin, Law’s Empire 70–72 (Belknap 1986); Jack M. Balkin, Original Meaning and Constitutional Redemption, 24 Const Commen 427, 444 (2007); Lawrence B. Solum, The Fixation Thesis: The Role of Historical Fact in Original Meaning, 91 Notre Dame L Rev 1, 55 (2015); Christopher R. Green, Originalism and the Sense-Reference Distinction, 50 SLU L J 555, 556–58 (2006); Mark D. Greenberg and Harry Litman, The Meaning of Original Meaning, 86 Georgetown L J 569, 574–82 (1998).
- 113The Bill of Rights was passed by Congress on September 25, 1789. See Primary Documents in American History: The Bill of Rights (Library of Congress), archived at http://perma.cc/ZAB5-25FS.The Judiciary Act was signed into law the day before. Judiciary Act of 1789, 1 Stat at 73.
- 114See, for example, Leegin Creative Leather Products, Inc v PSKS, Inc, 551 US 877, 888, 899 (2007) (calling the Sherman Act a “common-law statute” and noting that its use of “restraint of trade” “invokes the common law itself, . . . not merely the static content that the common law had assigned to the term in 1890”).
- 115See, for example, Business Electronics Corp v Sharp Electronics Corp, 485 US 717, 732 (1988) (“The Sherman Act adopted the term ‘restraint of trade’ along with its dynamic potential.”).
- 116See Part I.B.
- 117Judiciary Act of 1789 § 9, 1 Stat at 76–77, 28 USC § 1350.
- 11828 USC § 1350. See also Sosa v Alvarez-Machain, 542 US 692, 712–38 (2004) (construing 28 USC § 1350).
- 119Sosa, 542 US at 729–30.
- 120See, for example, Suzanna Sherry, An Originalist Understanding of Minimalism, 88 Nw U L Rev 175, 178 (1993) (“To the extent that the founders were good civic republicans, their elitism was derived not so much from economic self-interest as from a belief that only the ‘natural aristocracy’ had the education, leisure, and inclination to deliberate rationally and disinterestedly about the good of the nation.”).
- 121See, for example, Reynolds v Sims, 377 US 533, 558 (1964); William N. Eskridge Jr and John Ferejohn, A Republic of Statutes: The New American Constitution 183–86 (Yale 2010) (discussing the Social Security Act).
- 122See US Const Amend XVII. See also Beverly J. Ross and William Josephson, The Electoral College and the Popular Vote, 12 J L & Pol 665, 690 (1996) (summarizing the history of states requiring electors to follow the popular vote).
- 123See note 236 and accompanying text.
- 124See text accompanying notes 114–19.
- 125See, for example, US Const Amend IX; Dictionary Act § 2, 16 Stat 431, 431, codified as amended at 1 USC § 1; William Baude and Stephen E. Sachs, The Law of Interpretation, 130 Harv L Rev 1079, 1082–83 (2017).
- 126See R. Shep Melnick, Between the Lines: Interpreting Welfare Rights 7 (Brookings 1994) (arguing that “judicial interpretation of entitlement statutes has substantially enlarged programs for the poor”).
- 127See M‘Culloch v Maryland, 17 US (4 Wheat) 316, 416 (1819) (“[H]e would be charged with insanity who should contend, that the legislature might not superadd, to the oath directed by the constitution, such other oath of office as its wisdom might suggest.”). See also Jinks v Richland County, 538 US 456, 462 (2003) (upholding state-court duty to toll certain claims as necessary and proper, noting that “it suffices that [the law] is ‘conducive to the due administration of justice’ in federal court, and is ‘plainly adapted’ to that end”) (citation omitted). Note that Congress’s Necessary and Proper powers may implement the Article III judicial power relating to “equity.” US Const Art III, § 2. See also Part I.B (discussing equity’s history of attention to the poor).
- 128See generally Nicholas Quinn Rosenkranz, Federal Rules of Statutory Interpretation, 115 Harv L Rev 2085 (2002) (defending the general constitutionality of congressional authority to establish rules of statutory construction, and distinguishing effects on constitutional rules). The equal right principle may be on stronger footing than some of Professor Nicholas Quinn Rosenkranz’s proposed rules: rather than dictating basic features of judicial interpretation and so arguably encroaching on the “judicial Power” of Article III, the equal right principle operates only interstitially, after federal judges have already exercised their interpretive powers and ascertained a legal ambiguity. See Larry Alexander and Saikrishna Prakash, Mother May I? Imposing Mandatory Prospective Rules of Statutory Interpretation, 20 Const Commen 97, 98–100 (2003) (opposing “mandatory prospective rules of statutory interpretation,” at least if they override “clear” legislative intent). But see Linda D. Jellum, “Which Is to Be Master,” the Judiciary or the Legislature? When Statutory Directives Violate Separation of Powers, 56 UCLA L Rev 837, 842 (2009) (arguing that “interpretive directives are likely unconstitutional when enacted to apply generally to many statutes”).
- 129See for example, Nevada Department of Human Resources v Hibbs, 538 US 721, 730–35 (2003) (drawing on a legislative record to uphold a statute enacted pursuant to the Fourteenth Amendment’s Enforcement Clause); Lujan v Defenders of Wildlife, 504 US 555, 578 (1992) (holding that Congress may, through legislation, “elevat[e] to the status of legally cognizable injuries concrete, de facto injuries that were previously inadequate” to establish standing in federal court); Henry P. Monaghan, The Supreme Court 1974 Term—Foreword: Constitutional Common Law, 89 Harv L Rev 1, 2 (1975) (recognizing that “a wide variety of Supreme Court pronouncements are subject to modification and even reversal through ordinary political processes”).
- 130For discussion of legislation authorizing greater judicial enforcement, see note 335 and accompanying text.
- 131See Abbe R. Gluck, The States as Laboratories of Statutory Interpretation: Methodological Consensus and the New Modified Textualism, 119 Yale L J 1750, 1753–54 (2010).
- 132New State Ice Co v Liebmann, 285 US 262, 311 (1932) (Brandeis dissenting).
- 133See Richard M. Re, Promising the Constitution, 110 Nw U L Rev 299, 307, 310–11 (2016) (discussing “promissory oaths” in discussing the Article VI oath to support “the Constitution”). See also William Baude, Is Originalism Our Law?, 115 Colum L Rev 2349, 2394 (2015); Frank H. Easterbrook, Textualism and the Dead Hand, 66 Geo Wash L Rev 1119, 1122 (1998). The Supreme Court often posits that oaths affect officials. See, for example, Hollingsworth v Perry, 133 S Ct 2652, 2667 (2013).
- 134See Ronald Dworkin, Justice for Hedgehogs 303–04 (Belknap 2011) (outlining the reliance account); T.M. Scanlon, What We Owe to Each Other 302–09 (Belknap 1998) (outlining the assurance account); Judith Jarvis Thomson, The Realm of Rights 296–301 (Harvard 1990) (emphasizing the need for some type of “uptake” by the promisee); Seana Valentine Shiffrin, Promising, Intimate Relationships, and Conventionalism, 117 Phil Rev 481, 484–85 (2008) (outlining the power relationship account).
- 135See Re, 110 Nw U L Rev at 308 (cited in note 133) (discussing the Article VI constitutional oath).
- 136See Seana Valentine Shiffrin, Speech Matters: On Lying, Morality, and the Law 47–48 (Princeton 2014) (arguing that, under certain conditions, promises can be binding despite duress); Joseph Raz, The Morality of Freedom 173 (Oxford 1988) (noting that in most instances the “right to promise does not include the right to promise to perform immoral acts”).
- 137See Shiffrin, Speech Matters at 47 (cited in note 136). In addition, the equal right principle cannot trump other sources of law. See text accompanying note 175.
- 138See Re, 110 Nw U L Rev at 313–14 (cited in note 133).
- 139To the extent that the equal right principle became a subject of popular mobilization, its moral implications might be compared (and contrasted) with political campaign promises by elected officials—a topic for further research.
- 140See, for example, David Hume, A Treatise of Human Nature 523 (Clarendon 1896) (L.A. Selby-Bigge, ed) (noting that an “expression makes on most occasions the whole of the promise”). This claim sets aside defective promises, such as deception or miscommunication, which may not give rise to promises at all.
- 141See generally Ralf Poscher, Ambiguity and Vagueness in Legal Interpretation, in Peter M. Tiersma and Lawrence M. Solan, eds, The Oxford Handbook of Language and Law 128 (Oxford 2012).
- 142I focus on public meaning to exclude any private meanings that a speaker might secretly intend by using a certain expression. See Shiffrin, Speech Matters at 150 n 59 (cited in note 136) (criticizing the “doctrine of mental reservation” and noting that the federal oath disclaims any mental reservation); 5 USC § 3331.
- 143See text accompanying notes 109–12.
- 144See note 23.
- 145See Re, 110 Nw U L Rev at 320–22 (cited in note 133) (arguing that oaths incorporate lawful interpretive methods). See also text accompanying note 176.
- 146See Part II.A.
- 147See Douglas W. Kmiec, Judicial Selection and the Pursuit of Justice: The Unsettled Relationship between Law and Morality, 39 Cath U L Rev 1, 17 (1989) (“Few laymen are familiar with the first line of the judicial oath to ‘administer justice without respect to persons, and do equal right to the poor and to the rich.’”).
- 148The promise is “forgotten” by comparison with the Article II and various Article VI oaths to uphold the Constitution. See Re, 110 Nw U L Rev at 317–18 (cited in note 133). See also Kermit Roosevelt III, The Myth of Judicial Activism: Making Sense of Supreme Court Decisions 23 (Yale 2006) (noting the general constitutional oath and observing that “[i]t is one of the striking features of American government that the primary object of loyalty is not a person, a party, an office, or even a nation, but the Constitution itself”).
- 149See note 23.
- 150See Re, 110 Nw U L Rev at 322–28 (cited in note 133).
- 151See text accompanying note 33.
- 152For the need to link the law of economic equality with politics, see note 36. For the history of political mobilization around economic equality, including in legal contexts, see generally Sean Wilentz, The Politicians and the Egalitarians: The Hidden History of American Politics (Norton 2016); Joseph Fishkin and William E. Forbath, The Anti-Oligarchy Constitution, 94 BU L Rev 669 (2014).
- 153Many broad constitutional principles serve as a “platform” or “focal point” for public contestation over time. See Jack M. Balkin, Living Originalism 134 (Belknap 2011) (“To argue about the Constitution, one must have a common platform for arguing, first to disagree with others, then to persuade them.”); David A. Strauss, Common Law, Common Ground, and Jefferson’s Principle, 112 Yale L J 1717, 1734 (2003) (“The text of the Constitution is a particularly good focal point of this kind. Because of the way it is regarded in our culture, it is a natural place to look for a solution on which we can all agree, when agreement is especially valuable.”).
- 154See note 35.
- 155The best alternative platform is probably the Equal Protection Clause, discussed in Part III.D. For now, note that the Equal Protection Clause does not specify economic class and so can more easily be construed—consistent with extant precedent—as agnostic on matters of economic justice. At the same time, the Equal Protection Clause is also relatively confining: it has given rise to a complex doctrinal edifice involving “tiers of scrutiny,” and that framework—while powerful—tends to obscure subtler options, such as those discussed in Parts III.A–C.
- 156See William E. Nelson, The Role of History in Interpreting the Fourteenth Amendment, 25 Loyola LA L Rev 1177, 1180 (1992) (“[The Court should] commit itself to the furtherance of the principles best able to generate public support for the judiciary’s duty to ‘administer justice without respect to persons, and do equal right to the poor and to the rich.’”); Dan T. Coenen, A Constitution of Collaboration: Protecting Fundamental Values with Second-Look Rules of Interbranch Dialogue, 42 Wm & Mary L Rev 1575, 1596 (2001). See also generally William N. Eskridge Jr, Overriding Supreme Court Statutory Interpretation Decisions, 101 Yale L J 331 (1991).
- 157See Carrie Dann, Obama on Judges, Supreme Court (NBC News, July 17, 2007), archived at http://perma.cc/AZG8-KC6M(quoting Obama’s speech).
- 158Steven G. Calabresi, Obama’s ‘Redistribution’ Constitution, Wall St J A17 (Oct 28, 2008). See also Jonah Goldberg, Empathy vs. Impartiality, (National Review Online, May 27, 2009), archived at http://perma.cc/N9Y9-Q7J3(“[Obama] wants the justice’s oath to in effect be rewritten. Judges must administer justice with respect to persons, they must be partial to the poor, and so on.”).
- 159See 111th Cong, 1st Sess, in 155 Cong Rec 15848 (June 23, 2009) (statement of Sen Sessions) (“[W]hatever else empathy might be, it is not law. So I think empathy as a standard, preference as a standard is contrary to the judicial oath.”). The Senate has heard contrary readings of the oath. See, for example, note 99 (quoting the equal right principle and asserting: “They put the poor first. If there is any difference, they give the seniority to the poor”).
- 160Ultimately, the hearings for then-Judge Sonia Sotomayor featured expressions of both formal and substantive readings of the equal right principle. See Nomination of Hon. Sonia Sotomayor to Be an Associate Justice of the Supreme Court of the United States, Hearing before the Senate Committee on the Judiciary, 111th Cong, 1st Sess 6, 22–23, 39, 67–69, 73 (2009).
- 161A large literature endorses significant substantive engagement with nominees during confirmation hearings. See, for example, Christopher L. Eisgruber, The Next Justice: Repairing the Supreme Court Appointments Process 169–77 (Princeton 2007); Elena Kagan, Book Review, Confirmation Messes, Old and New, 62 U Chi L Rev 919, 935 (1995) (“[T]he Senate’s confirmation hearings [ ] ought to focus on substantive issues.”); Robert C. Post and Reva B. Siegel, Questioning Justice: Law and Politics in Judicial Confirmation Hearings, 115 Yale L J Pocket Part 38, 44–45 (2006). But see note 173 (noting that nominees often resist making promises).
- 162US Const Art II, § 2, cl 2. That is, the hearings could be a senatorial construction of the Constitution.
- 163See Michael J. Gerhardt, The Federal Appointments Process: A Constitutional and Historical Analysis 67 (Duke 2d ed 2003).
- 164See Henry J. Abraham, Justices, Presidents, and Senators: A History of the U.S. Supreme Court Appointments from Washington to Bush II 153–54 (Rowman & Littlefield 5th ed 2008).
- 165See Denis Steven Rutkus, Supreme Court Appointment Process: Roles of the President, Judiciary Committee, and Senate *20–21 (Congressional Research Service, Feb 19, 2010), archived at http://perma.cc/UUM8-QT3B.
- 166US Const Amend XVII.
- 167See Gerhardt, The Federal Appointments Process at 65–66 (cited in note 163); David R. Stras, Book Review, Understanding the New Politics of Judicial Appointments, 86 Tex L Rev 1033, 1057–68 (2008).
- 168Nomination of Samuel A. Alito, Jr. to Be an Associate Justice of the Supreme Court of the United States, Hearing before the Senate Committee on the Judiciary, 109th Cong, 2d Sess 17 (2006).
- 169Id.
- 170See, for example, Roberts Hearings, 109th Cong, 1st Sess at 448–49 (cited in note 2) (statement of John G. Roberts Jr).
- 171As Professor Stephen J. Wermiel noted, senators “hope that, once confirmed, the new Justices will remember the importance of the core values urged on them by the senators or at least feel bound by the assurances they gave during their hearings.” Stephen J. Wermiel, Confirming the Constitution: The Role of the Senate Judiciary Committee, 56 L & Contemp Probs 121, 142 (1993). Empirical research suggests that a nominee’s answers in hearing have some albeit limited correlation with the nominee’s subsequent behavior. See Jason J. Czarnezki, William K. Ford, and Lori A. Ringhand, An Empirical Analysis of the Confirmation Hearings of the Justices of the Rehnquist Natural Court, 24 Const Commen 127, 130, 158–59 (2007). Of course, such a correlation may not be caused by a judge’s sense of having committed herself to a view.
- 172See text accompanying notes 2–4. Still, Roberts’s apparent endorsement of substantive economic equality was ambivalent, as he went on to make statements that arguably suggested a formal equality view. See text accompanying notes 3–4.
- 173See Re, 110 Nw U L Rev at 325–26 (cited in note 133). See also Baude, 115 Colum L Rev at 2394–96 (cited in note 133). Confirming the perceived moral significance of statements made in hearings, nominees customarily decline to answer certain questions, such as questions about specific cases, to avoid the appearance or reality of making a “promise.” See, for example, Kagan Hearings, 111th Cong, 2d Sess at 231 (cited in note 27) (statement of Elena Kagan) (declining to “promise”); O’Connor Hearings, 97th Cong, 1st Sess at 57–58 (cited in note 27) (statement of Sandra Day O’Connor) (declining to answer certain questions to avoid having “morally committed myself to a certain position”).
- 174Notably, a judge’s legal and promissory obligations are not necessarily identical to the proper conditions for the judge’s removal. See US Const Art II, § 4; US Const Art III, § 1. For example, someone can coherently argue for or against originalism without endorsing the impeachment of judges who take a contrary view.
- 175See text accompanying notes 67–69. See also Part I.C. But see William C. Porth and Robert P. George, Trimming the Ivy: A Bicentennial Re-Examination of the Establishment Clause, 90 W Va L Rev 109, 112 n 10 (1987) (“If anyone were to argue that the form of the judicial oath confers upon judges a special license to manipulate or disregard constitutional provisions, he would merely be making a case for the unconstitutionality of the statute prescribing the oath.”).
- 176See Re, 110 Nw U L Rev at 304–05 (cited in note 133) (arguing that oaths to adhere to law incorporate lawful interpretive methods).
- 177So while judges could in principle experience moral conflict between a promised interpretive method and a promised principle of law, see id at 351–54, there is no need to determine how to resolve that conflict here, see Part II.A.
- 178See Barry Friedman, Mediated Popular Constitutionalism, 101 Mich L Rev 2596, 2598 & n 11 (2003) (explaining that what popular constitutionalists “seem to share is a notion that—at least in specified circumstances—judicial review should mirror popular views about constitutional meaning”). See also Katie R. Eyer, The Declaration of Independence as Bellwether, 89 S Cal L Rev 427, 429 n 7 (2016); Robert Post and Reva Siegel, Roe Rage: Democratic Constitutionalism and Backlash, 42 Harv CR–CL L Rev 373, 376–77 (2007) (elaborating a related, primarily descriptive view of “democratic constitutionalism”); Robert Post and Reva Siegel, Popular Constitutionalism, Departmentalism, and Judicial Supremacy, 92 Cal L Rev 1027, 1039 (2004) (“[J]udges can ground constitutional law in the Constitution only by incorporating the political convictions of the nation into the substance of constitutional law.”).
- 179But see Post and Siegel, 42 Harv CR–CL L Rev at 381–82 (cited in note 178) (arguing that “[p]residential politics and Supreme Court nominations [ ] are blunt and infrequent methods of affecting the content of constitutional law”).
- 180See Re, 110 Nw U L Rev at 304–05 (cited in note 133) (setting out two mechanisms of legal change relating to the Article VI oath to support the Constitution).
- 181New popular views can sometimes alter the implications of prior oaths by triggering “change rules,” or rules for altering rules. See Re, 110 Nw U L Rev at 304–05 (cited in note 133). For example, a judge who took her oath today might be committed to changing her view of certain laws in light of new amendments, statutes, or precedents. In some areas of law, change rules may be sensitive to changes in popular views. See id.
- 182Pub L No 111-148, 124 Stat 119 (2010). These examples are discussed in Part III.A (counsel), Part III.B (healthcare), and Part III.C (campaign finance).
- 183For examples of federal-court debate on the issue of “equal right,” see Patterson v McLean Credit Union, 485 US 617, 619, 621 (1988); United States v Cilins, 2013 WL 3802012, *3 (SDNY), citing 28 USC § 453.
- 184See notes 157–60 and accompanying text (discussing public debate over judicial “empathy” and the equal right principle).
- 185See Liscow, Note, 123 Yale L J at 2483–84 (cited in note 30). See also Bowen v Gilliard, 483 US 587, 600–01 (1987) (emphasizing the need for judicial deference to the political branches in spending and entitlement programs); Atkins v Parker, 472 US 115, 129 (1985) (same).
- 186See generally, for example, Randy E. Barnett, Restoring the Lost Constitution: The Presumption of Liberty (Princeton 2004) (providing a libertarian constitutionalism). See also notes 357–59 and accompanying text (discussing the oath’s theoretical thinness).
- 187Lochner v New York, 198 US 45, 75 (1905) (Holmes dissenting). For other contrasts with Lochner, see text accompanying notes 357–59.
- 188See W.B. Gallie, Essentially Contested Concepts, 56 Proc Aristotelian Socy 167, 173–80 (1956). See also Mark Tushnet, Taking the Constitution Away from the Courts 194 (Princeton 1999) (“Populist constitutional law does not determine the outcomes of political controversies. . . . Instead, it orients us as we think about and discuss where our country ought to go.”).
- 189See note 32 and accompanying text.
- 190See note 185.
- 191See, for example, Michael Walzer, Spheres of Justice: A Defense of Pluralism and Equality 100–02 (Basic 1983). The legal profession’s simultaneous efforts at adhering to both fairness- and market-based values have always been challenging. See, for example, Gillian K. Hadfield, The Price of Law: How the Market for Lawyers Distorts the Justice System, 98 Mich L Rev 953, 955 (2000) (“The profession is entrusted with guardianship of the justice system, and so imbued with the qualities of public service, but it also primarily distributes its goods via commercial, private markets.”).
- 192As Professor Alexandra D. Lahav puts it: “[E]ven if resource inequality characterizes our society, the court system ought not reflect and reinforce those extant inequalities in enforcing legal rights and obligations. . . . The oath of judicial office requires fidelity to a principle of equality before the court.” Alexandra D. Lahav, Symmetry and Class Action Litigation, 60 UCLA L Rev 1494, 1519–20 (2013). See also Owen M. Fiss, The Supreme Court 1978 Term—Foreword: The Forms of Justice, 93 Harv L Rev 1, 24 (1979) (arguing that judges must ensure “that a just result will be reached, not one determined by the distribution of resources in the natural lottery or in the market”); Kenneth L. Karst, The Supreme Court 1976 Term—Foreword: Equal Citizenship under the Fourteenth Amendment, 91 Harv L Rev 1, 59 (1977).
- 193See Soifer, 48 Wash & Lee L Rev at 394 (cited in note 93) (denying that the equal right principle “would require judges to ignore different starting places, significant encumbrances, and the weight of the past”); William M. Richman and William L. Reynolds, Elitism, Expediency, and the New Certiorari: Requiem for the Learned Hand Tradition, 81 Cornell L Rev 273, 277 (1996) (“Federal appellate courts are treating litigants differently, a difference that generally turns on a litigant’s ability to mobilize substantial private legal assistance. As a result, judicial procedures no longer permit judges to fulfill their oath of office.”).
- 194351 US 12 (1956) (Black) (plurality). See also Thiel v Southern Pacific Co, 328 US 217, 226 (1946) (Frankfurter dissenting):
The process of justice must of course not be tainted by property prejudice any more than by racial or religious prejudice. The task of guarding against such prejudice . . . is embraced in the duty, formulated by the judicial oath, to “administer justice without respect to persons, and do equal right to the poor and to the rich.”
- 195Bearden v Georgia, 461 US 660, 664 (1983) (collecting cases that cite the Griffin principle).
- 196Griffin, 351 US at 13–14.
- 197See id at 18.
- 198Id at 16 & n 10.
- 199Id at 19.
- 200See Griffin, 351 US at 17.
- 201See Erickson v Pardus, 551 US 89, 94 (2007) (noting that a document filed pro se is “to be liberally construed”). See also FRCP 8(e) (“Pleadings must be construed so as to do justice.”); Kevin H. Smith, Justice for All?: The Supreme Court’s Denial of Pro Se Petitions for Certiorari, 63 Albany L Rev 381, 385 (1999) (invoking the equal right principle to criticize pro se certiorari practice); William M. Richman, Rationing Judgeships Has Lost Its Appeal, 24 Pepperdine L Rev 911, 912 (1997) (invoking the equal right principle in criticizing appellate practice for having “created different tracks of justice for different cases and different litigants”); Carl Tobias, The New Certiorari and a National Study of the Appeals Courts, 81 Cornell L Rev 1264, 1267 (1996).
- 202See, for example, Estelle v Gamble, 429 US 97, 106 (1976).
- 203See Erickson, 551 US at 94, quoting Estelle, 429 US at 106; 28 USC § 1915 (establishing procedures for in forma pauperis filings).
- 204For discussion of legal construction, as opposed to interpretation, see note 279 and accompanying text.
- 205This approach overlaps with the canon-based approach of Part III.B.
- 206See, for example, Wal-Mart Stores, Inc v Dukes, 564 US 338, 367 (2011). See also Brooke D. Coleman, One Percent Procedure, 91 Wash L Rev 1005, 1013–24 (2016) (arguing that interests of the wealthy set the tone for civil procedure, including for class actions); Myriam Gilles, Class Warfare: The Disappearance of Low-Income Litigants from the Civil Docket, 65 Emory L J 1531, 1536–37 (2016).
- 207See Samuel Issacharoff, Preclusion, Due Process, and the Right to Opt Out of Class Actions, 77 Notre Dame L Rev 1057, 1060 (2002) (noting that defendants may have “an incentive to expend resources in litigation that would overwhelm any individual litigant, even if the amount of the claim would conceivably justify one-on-one litigation”).
- 208See Lahav, 60 UCLA L Rev at 1519–20 (cited in note 192); Marvin E. Frankel, Amended Rule 23 from a Judge’s Point of View, 32 Antitrust L J 295, 299 (1966) (reporting Benjamin Kaplan’s reference to the “class action’s historic mission of taking care of the smaller guy”) (quotation marks omitted).
- 209See, for example, Campbell-Ewald Co v Gomez, 136 S Ct 663, 672, 677 (2016).
- 210Matthews v Eldridge, 424 US 319, 335 (1976).
- 211Goldberg v Kelly, 397 US 254, 264 (1970). The Supreme Court has indicated that the proper inquiry focuses on the needs of the affected group as a whole, not necessarily the needs of any individual claimant. See Walters v National Association of Radiation Survivors, 473 US 305, 321 (1985).
- 212See Goldberg, 397 US at 264 (expressing concern that there be adequate process to preserve the “means by which to live”).
- 213409 US 434 (1973).
- 214See id at 436, 449–50.
- 215Id at 449.
- 216Id at 460 (Marshall dissenting).
- 217Kras, 409 US at 460 (Marshall dissenting).
- 218See In re Amendment to Rule 39, 500 US 13, 15 n * (1990) (per curiam) (Marshall dissenting) (quoting the expression of the equal right principle in the judicial oath). Dean Martha Minow, a former clerk of Justice Thurgood Marshall, noted that the Justice:
maintained that [a] new [in forma pauperis] rule in effect amended the oath of each Justice by eliminating the commitment to “do equal right to the poor and to the rich” to read instead: “All men and women are entitled to their day in Court only if they have the means and the money.”
Martha Minow, A Tribute to Justice Thurgood Marshall, 105 Harv L Rev 66, 74 n 68 (1991), quoting In re Amendment to Rule 39, 500 US at 15 n * (Marshall dissenting).
- 219US Const Amend VIII. See also United States v Bajakajian, 524 US 321, 328–36 (1998); Colgan, 102 Cal L Rev at 320–36 (cited in note 57).
- 220See Colgan, 102 Cal L Rev at 322 (cited in note 57) (relaying Blackstone’s observation that “[t]he value of money itself changes from a thousand causes; and, at all events, what is ruin to one man’s fortune, may be matter of indifference to another’s”). See also id (“[T]he Magna Carta treated a fine that would impoverish a defendant as per se disproportionate.”), citing Magna Carta Art 20.
- 221US Const Amend VIII.
- 222See Nick Pinto, The Bail Trap (NY Times Mag, Aug 13, 2015), online at http://www.nytimes.com/2015/08/16/magazine/the-bail-trap.html(visited Apr 30, 2017) (Perma archive unavailable).
- 223United States v Cilins, 2013 WL 3802012, *3 (SDNY), citing 28 USC § 453.
- 224See, for example, United States v Zarrab, 2016 WL 3681423, *13 (SDNY) (“That pledge is violated if a defendant, who is a serious risk of flight with every incentive to flee and the means to do so, is permitted to buy his way out of detention.”), quoting Cilins, 2013 WL 3802012 at *3; United States v Valerio, 9 F Supp 3d 283, 292–94 (EDNY 2014) (noting that “it is highly questionable whether the Bail Reform Act contemplates” private jail), quoting Cilins, 2013 WL 3802012 at *3.
- 225372 US 335 (1963).
- 226Id at 342–44 (construing US Const Amend XIV). On the same day the Court also afforded indigents a right to counsel for their first appeal of right from a criminal conviction. See Douglas v California, 372 US 353, 357 (1963) (“But where the merits of the one and only appeal an indigent has as of right are decided without benefit of counsel, we think an unconstitutional line has been drawn between rich and poor.”).
- 227Gideon, 372 US at 344. See also Daugherty v Beto, 388 F2d 810, 817 (5th Cir 1967) (Rives dissenting) (“It seems to me that my oath of office to ‘administer justice without respect to persons, and do equal right to the poor and to the rich,’ compels me to do all in my power to require really effective service from appointed counsel.”) (citation omitted).
- 228See Turner v Rogers, 564 US 431, 444–49 (2011) (discussing the right to counsel in connection with civil litigation when the party may face imprisonment). See also Dylan Walsh, On the Defensive (The Atlantic, June 2, 2016), archived at http://perma.cc/9SQG-JTKV.
- 229Tamara Audi, ‘Civil Gideon’ Trumpets Legal Discord (Wall St J, Oct 27, 2009), archived at http://perma.cc/7M8X-KZ2M.
- 230See note 49 and accompanying text.
- 231384 US 436 (1966).
- 232Id at 471–72.
- 233See Deborah L. Rhode, Access to Justice 3–25 (Oxford 2004) (invoking the “equal justice under law” inscription to challenge procedural barriers to justice for the poor). See also Judith Resnik, Equality’s Frontiers: Courts Opening and Closing, 122 Yale L J Online 243, 254 (2013); Rebecca E. Zietlow, Exploring a Substantive Approach to Equal Justice Under Law, 28 NM L Rev 411, 438 (1998); Zoe Tillman, Garland, Mum on Nomination, Urges Lawyers to Close Justice Gap (Natl Law J, Apr 21, 2016), archived at http://perma.cc/5JFX-93DW(recounting Chief Judge Merrick B. Garland’s remarks that “[w]ithout legal assistance, poor individuals and families have no real access to justice” and that “[w]ithout access to justice, the promise of equal justice rings hollow”).
- 234See Office of the Curator, Supreme Court of the United States, The West Pediment: Information Sheet (Aug 28, 2003), archived at http://perma.cc/XHJ2-NTP3.See also Jim Chen, Mayteenth, 89 Minn L Rev 203, 217 n 81 (2004). The inscription resembles Pericles’s funeral oration, which invoked a kind of equal right principle. See Thucydides, The Peloponnesian War 108 (Random House 1982) (T.E. Wick, ed) (Richard Crawley, trans) (“If we look to the laws, they afford equal justice to all in their private differences; . . . class considerations [are] not being allowed to interfere with merit.”).
- 235In construing ambiguous statutory provisions directed toward the poor, courts have often—if inconsistently—erred on the side of expanding statutory welfare rights and other aspects of economic equality. See generally Melnick, Between the Lines (cited in note 126).
- 236See generally Martin Gilens, Affluence and Influence: Economic Inequality and Political Power in America (Princeton 2012). See also Daryl J. Levinson, The Supreme Court 2015 Term—Foreword: Looking for Power in Public Law, 130 Harv L Rev 31, 122, 138 (2016); Nicholas O. Stephanopoulos, Political Powerlessness, 90 NYU L Rev 1527, 1577–79 (2015); Ganesh Sitaraman, The Puzzling Absence of Economic Power in Constitutional Theory, 101 Cornell L Rev 1445, 1455–66 (2016); Bertrall L. Ross II and Su Li, Measuring Political Power: Suspect Class Determinations and the Poor, 104 Cal L Rev 323, 324 (2016) (arguing that “legislators’ support for antipoverty legislation is not motivated by the political power of the poor”).
- 237See Sitaraman, 101 Cornell L Rev at 1455–66 (cited in note 236) (reviewing relevant political science literature).
- 238See id at 1464–65.
- 239See Bruce A. Ackerman, Beyond Carolene Products, 98 Harv L Rev 713, 729–31 (1985) (pointing out that “the poor are both relatively anonymous and diffuse” and therefore politically vulnerable). “Perhaps because Ackerman focused on constitutional law, he overlooked the possibility of protecting such groups in other areas.” Jonathan Zasloff, Courts in the Age of Dysfunction, 121 Yale L J Online 479, 495 (2012).
- 240See Einer Elhauge, Statutory Default Rules: How to Interpret Unclear Legislation 168–87 (Harvard 2008).
- 241Elhauge’s case for “preference-eliciting default rules” includes an argument for construing statutes against the interests of the politically empowered on the theory that they will be better able to lobby Congress to state its preferences more clearly. See id.
- 242See Jonathan R. Macey, Promoting Public-Regarding Legislation through Statutory Interpretation: An Interest Group Model, 86 Colum L Rev 223, 238–40 (1986). Macey’s approach is designed to counterbalance the influence of focused interest groups that lobby in favor of their own economic interests, at the public’s expense. See also id at 228 n 29 (noting by way of example that a statute promoting the interests of “the poor” would likely qualify as “public-regarding”).
- 243See Cass R. Sunstein, Interpreting Statutes in the Regulatory State, 103 Harv L Rev 405, 473–74 (1989) (raising the possibility of “aggressive statutory construction to ensure against irrational or arbitrary deprivations of benefits”).
- 244Zasloff, 121 Yale L J Online at 495 n 66 (cited in note 239). Zasloff also noted that Sunstein “offered no process justification” for his “welfare rights” canon. Id, citing William N. Eskridge Jr, Philip P. Frickey, and Elizabeth Garrett, Cases and Materials on Legislation: Statutes and the Creation of Public Policy 949 (West 4th ed 2007).
- 245See Zasloff, 121 Yale L J Online at 495–98 (cited in note 239).
- 246By comparison, the equal right principle is at least as firmly grounded in law and popular norms as, say, substantive canons of interpretation rooted in federalism. For an example of a federalism canon at work, see Bond v United States, 134 S Ct 2077, 2090 (2014).
- 247For another example, see William N. Eskridge Jr, Public Values in Statutory Interpretation, 137 U Pa L Rev 1007, 1089 (1989) (noting that “[o]ne of the marginalized groups in our society is the poor”).
- 248This concern holds for any process-based argument that is ungrounded in the Constitution itself. As we see in Part III.D, however, there are constitutionally grounded theories in favor of erring on the side of the poor when engaged in statutory interpretation—and the equal right principle can buttress those theories as well. See notes 322–26 and accompanying text.
- 249485 US 617 (1988).
- 250See id at 621 (Blackmun dissenting) (emphasizing “our society’s earnest commitment to ending racial discrimination”).
- 251Id at 619, quoting 28 USC § 453.
- 252Could the equal right principle’s use of “poor” and “rich” figuratively refer to relatively powerless and powerful groups? If so, the oath might capture noneconomic distinctions, such as race. As the main text indicates, Patterson suggests as much, as do the oath’s biblical precursors. See note 44 and accompanying text. Still, that broader reading would require additional argument, in part because the federal judicial oath—unlike its biblical precursors—expressly contrasts two economic groups.
- 253See Part II.
- 254See Part II. See also Soifer, 48 Wash & Lee L Rev at 393–95 (cited in note 93) (leveling a similar critique).
- 255See United States v Bass, 404 US 336, 348 (1971) (notice); Matthew R. Christiansen and William N. Eskridge Jr, Congressional Overrides of Supreme Court Statutory Interpretation Decisions, 1967–2011, 92 Tex L Rev 1317, 1466 (2014) (“representation-reinforcing”).
- 256See William J. Stuntz, The Uneasy Relationship between Criminal Procedure and Criminal Justice, 107 Yale L J 1, 51 n 167 (1997); Steven K. Smith and Carol J. DeFrances, Indigent Defense *1, 4 (Bureau of Justice Statistics, Feb 1996), archived at http://perma.cc/4326-WRAJ.
- 257Again, the idea is not to disadvantage the rich, see notes 94–96 and accompanying text, but rather to treat both rich and poor fairly—here, by preventing some wealthy defendants from sometimes receiving the double benefit of both adequate notice and lenity.
- 258See Zachary Price, The Rule of Lenity as a Rule of Structure, 72 Fordham L Rev 885, 927 (2004) (noting that, “in general,” the Court “has tolerated broad interpretations of white collar crimes”); Justin Weitz, Note, The Devil Is in the Details: 18 U.S.C. § 666 after Skilling v. United States, 14 NYU J Legis & Pub Pol 805, 812–13 (2011) (noting that “judicial construction of . . . criminal statutes that address white-collar crime and public corruption has frequently failed to follow” the rule of lenity). See also Durland v United States, 161 US 306, 312–13 (1896) (construing ambiguity in a criminal fraud statute broadly); Carpenter v United States, 484 US 19, 27–28 (1987) (same).
- 259See, for example, 18 USC § 3572 (providing for consideration of numerous factors when imposing fines, including the “defendant’s income, earning capacity, and financial resources”).
- 260Eighth Amendment doctrine resists that consideration. See note 219 and accompanying text.
- 261See text accompanying note 61.
- 262See 11 USC § 101 et seq.
- 263See, for example, Bowen, 483 US at 600–01 (emphasizing the need for judicial deference to the political branches in spending and entitlement programs); Atkins, 472 US at 129 (same).
- 264135 S Ct 2480 (2015).
- 265See id at 2482 (discussing 26 USC § 36B).
- 266See id at 2496.
- 267For a similar argument without reference to the federal judicial oath, see Frank I. Michelman, The Unbearable Lightness of Tea Leaves: Constitutional Political Economy in Court, 94 Tex L Rev 1403, 1408–09 (2016) (suggesting that, in King, the Court should perhaps have erred against the interpretive option that “would have denied health care benefits to certain needy individuals and families no less deserving than others to whom benefits would flow”).
- 268See Transcript of Oral Argument, King v Burwell, Docket No 14-114, *45 (US Mar 4, 2015) (available on Westlaw at 2015 WL 916473) (Solicitor General Donald Verrilli arguing against a result that would “revoke[ ] the promise of affordable care for millions of Americans”).
- 269See King, 135 S Ct at 2494.
- 270See id at 2497–99 (Scalia dissenting).
- 271351 US 570 (1956).
- 272Id at 572.
- 273Id at 580.
- 274Id at 581–82.
- 275De Sylva, 351 US at 583 (Douglas concurring).
- 276Id at 580.
- 277See, for example, Citizens United v Federal Election Commission, 558 US 310, 340 (2010) (discussing strict scrutiny); Turner Broadcasting System, Inc v Federal Communications Commission, 520 US 180, 235 (1997) (O’Connor dissenting) (discussing intermediate scrutiny).
- 278See Richard H. Fallon Jr, Strict Judicial Scrutiny, 54 UCLA L Rev 1267, 1321 (2007) (“[T]he Supreme Court has frequently adopted an astonishingly casual approach to identifying compelling interests.”); Note, Let the End Be Legitimate: Questioning the Value of Heightened Scrutiny’s Compelling- and Important-Interest Inquiries, 129 Harv L Rev 1406, 1408–09 (2016) (“[N]o watershed opinion has set out a clear method for determining whether any given interest is compelling, important, or merely legitimate.”).
- 279See David A. Strauss, The Ubiquity of Prophylactic Rules, 55 U Chi L Rev 190, 198 (1988) (“[T]he most significant aspects of first amendment law can be seen as judge-made prophylactic rules that exceed the requirements of the ‘real’ first amendment.”). See also Lawrence B. Solum, Originalism and the Unwritten Constitution, 2013 U Ill L Rev 1935, 1951. For discussion of “interpretation” and “construction,” see Balkin, Living Originalism 3–6 (cited in note 153); Akhil Reed Amar, America’s Unwritten Constitution: The Precedents and Principles We Live By 216–18 (Basic 2012); Keith E. Whittington, Constitutional Construction: Divided Powers and Constitutional Meaning 1 (Harvard 1999); Lawrence B. Solum, Semantic Originalism *18–19 (Ill Pub L & Legal Theory Rsrch Papers Series, No 07-24, 2008), archived at http://perma.cc/TN7M-23ZD.But see John O. McGinnis and Michael B. Rappaport, Original Methods Originalism: A New Theory of Interpretation and the Case against Construction, 103 Nw U L Rev 751, 773 (2009) (arguing that construction can and should be avoided by following original methods).
- 280In ascertaining compelling interests, the Court sometimes considers statutory law or defers to other government actors. See, for example, Fisher v University of Texas at Austin, 133 S Ct 2411, 2419 (2013) (“According to Grutter, a university’s ‘educational judgment that such diversity is essential to its educational mission is one to which we defer.’”), quoting Grutter v Bollinger, 539 US 306, 328 (2003); New York v Ferber, 458 US 747, 756–58 (1982) (citing widespread laws banning child pornography as evidence of a compelling interest).
- 281See Part II.B.
- 282US Const Art I, § 10, cl 1.
- 283See US Const Art I, § 10, cl 1 (“No state shall . . . pass any . . . Law impairing the Obligation of Contracts.”). See also Douglas W. Kmiec and John O. McGinnis, The Contract Clause: A Return to the Original Understanding, 14 Hastings Const L Q 525, 526 (1987).
- 284290 US 398 (1934).
- 285Id at 415–16, 447.
- 286Id at 444–45.
- 287See, for example, Richard A. Epstein, Toward a Revitalization of the Contract Clause, 51 U Chi L Rev 703, 737 (1984) (“The net economic consequence of the (unanticipated) deflation was to provide creditors with windfall transfers from their debtors.”).
- 288US Const Amend I. See also Buckley v Valeo, 424 US 1, 44 (1976).
- 289See Federal Election Commission v Wisconsin Right to Life, Inc, 551 US 449, 464–65 (2007) (Roberts) (plurality).
- 290See Buckley, 424 US at 48–49.
- 291Citizens United, 558 US at 350, quoting Buckley, 424 US at 48.
- 292Arizona Free Enterprise Club’s Freedom Club PAC v Bennett, 564 US 721, 750 (2011), quoting Davis v Federal Election Commission, 554 US 724, 741 (2008).
- 293Which, perhaps, we should not. See, for example, Simon & Schuster, Inc v Members of the New York State Crime Victims Board, 502 US 105, 124 (1991) (Kennedy concurring in the judgment); Eugene Volokh, Freedom of Speech, Permissible Tailoring and Transcending Strict Scrutiny, 144 U Pa L Rev 2417, 2418–21 (1996). Alternative ways of evaluating First Amendment rights might reduce or change the role of construction and thereby diminish the equal right principle’s relevance in this area.
- 294See Buckley, 424 US at 48.
- 295558 US 310 (2010). For criticism of the ruling, see, for example, id at 471–78 (Stevens dissenting) (discussing the government’s “anti-distortion” interest); Richard L. Hasen, Plutocrats United: Campaign Money, the Supreme Court, and the Distortion of American Elections 73 (Yale 2016).
- 296Under the logic outlined in the main text, other First Amendment restrictions on campaign finance would remain, such as the “narrow tailoring” requirement and prohibitions on illegitimate legislative purposes.
- 297135 S Ct 1656 (2015).
- 298See id at 1662.
- 299See id at 1666 (citations omitted), quoting 10 Encyclopaedia of the Laws of England 105 (Sweet & Maxwell 2d ed 1908) and 28 USC § 453.
- 300See Williams-Yulee, 135 S Ct at 1666.
- 301See id.
- 302See Part I.C.
- 303564 US 721 (2011).
- 304Id at 727–28.
- 305See id at 748–50.
- 306See id at 749–50 & n 10 (adducing extrarecord evidence of an impermissible “leveling” motive on the part of the state legislature).
- 307See Arizona Free Enterprise Club’s Freedom Club PAC, 564 US at 755–57 (Kagan dissenting).
- 308319 US 141 (1943).
- 309Id at 148–49.
- 310Id at 146.
- 311See, for example, Zablocki v Redhail, 434 US 374, 387 (1978) (invalidating a state restriction on the fundamental right to marriage in part because the restriction imposed burdens on individuals who “lack the financial means” to comply).
- 312See, for example, id at 404 & n 5 (Stevens concurring) (quoting the equal right principle in a fundamental right to marry case).
- 313See note 279 and accompanying text.
- 314For discussion of markets’ properly limited social role, see note 191 and accompanying text.
- 315383 US 663 (1966).
- 316Id at 666.
- 317See id (“Voter qualifications have no relation to wealth nor to paying or not paying this or any other tax.”).
- 318See id at 664 n 1.
- 319See, for example, Crawford v Marion County Election Board, 553 US 181, 188–89 (2008) (plurality) (holding that a voter ID statute was not vulnerable to a facial challenge). For criticism rooted in equal right considerations, see id at 212 (Souter dissenting) (noting that the requirement to acquire identification at a Bureau of Motor Vehicles location would especially burden “[p]oor, old, and disabled voters”).
- 320See Sager, 91 Harv L Rev at 1218 (cited in note 22).
- 321For a possible structural implication, consider the Republican Governance Clause, also called the Guarantee Clause, which is sometimes viewed as posing nonjusticiable political questions but was originally viewed by some as a legal bulwark against aristocracy. See US Const Art IV, § 4; Luther v Borden, 48 US 1, 42 (1849); Jonathan Elliot, ed, 4 The Debates in the Several State Conventions on the Adoption of the Federal Constitution 195 (Taylor & Maury 2d ed 1854). See also Jack M. Balkin, Republicanism and the Constitution of Opportunity, 94 Tex L Rev 1427, 1428–31 (2016); Fishkin and Forbath, 94 BU L Rev at 684 (cited in note 152). Perhaps the equal right principle supports judicial implementation of republican governance via economic equality.
- 322US Const Amend XIV (“No state shall . . . deny to any person within its jurisdiction the equal protection of the laws.”).
- 323See, for example, Bowen v Gilliard, 483 US 587, 602–03 (1987).
- 324See, for example, Harris v McRae, 448 US 297, 323 (1980) (emphasizing the Court’s repeated refusal to find “poverty, standing alone” to be a suspect classification). For arguments that the poor should qualify, see Mario L. Barnes and Erwin Chemerinsky, The Disparate Treatment of Race and Class in Constitutional Jurisprudence, 72 L & Contemp Probs 109, 119 (2009) (“Perhaps, however, one should need no other basis to call for closer scrutiny than the obvious truth that poverty takes on the character of a stigmatizing identity category.”); Michele Gilman, A Court for the One Percent: How the Supreme Court Contributes to Economic Inequality, 2014 Utah L Rev 389, 405–10 (arguing that poverty is intergenerational and more immutable than often believed). See also Ross and Li, 104 Cal L Rev at 380 (cited in note 236) (arguing for a test based on “interest group support, measures of political inequality, relative group voter turnout, and descriptive representation alongside favorable legislative actions to provide a more accurate assessment of a group’s political power”).
- 325411 US 1 (1973).
- 326See Henry Rose, The Poor as a Suspect Class under the Equal Protection Clause: An Open Constitutional Question, 34 Nova L Rev 407, 407–08 (2010) (collecting citations).
- 327See Rodriguez, 411 US at 18–20.
- 328See id at 19.
- 329See id at 35, 41.
- 330See id at 31.
- 331See Sager, 91 Harv L Rev at 1218 (cited in note 22) (arguing that Rodriguez rested on “arguments which support the underenforcement of the equal protection clause by the federal courts”).
- 332See note 129 (arguing that a statute can influence constitutional law).
- 333See Part I.C (discussing related history). See also 28 USC § 453.
- 334But see note 324 and accompanying text (collecting sources arguing for broader readings of the Equal Protection Clause).
- 335See Zivotofsky v Clinton, 566 US 189, 200–01 (2012); Chris Michel, Comment, There’s No Such Thing as a Political Question of Statutory Interpretation: The Implications of Zivotofsky v. Clinton, 123 Yale L J 253, 259–60 (2013). See also note 129 and accompanying text (collecting sources on legislative influence on constitutional rules).
- 336But see Rodriguez, 411 US at 19 (suggesting that “the class of disadvantaged ‘poor’ cannot be identified or defined in customary equal protection terms”).
- 337See 28 USC § 453.
- 338See William J. Stuntz, The Collapse of American Criminal Justice 104–06 (Belknap 2011); John Harrison, Reconstructing the Privileges or Immunities Clause, 101 Yale L J 1385, 1390 (1992).
- 339See Harrison, 101 Yale L J at 1390 (cited in note 338), citing Yick Wo v Hopkins, 118 US 356, 369 (1886).
- 340See Rodriguez, 411 US at 19–20. When implementing the equal right principle, federal courts might draw on executive branch definitions of poverty and affluence used in various programs. See, for example, Federal Poverty Guidelines (cited in note 12). For discussion of deferring to legislative action as well, see Bowen, 483 US at 600–01; Atkins, 472 US at 129.
- 341See Rodriguez, 411 US at 19–20.
- 342See id. See also Ross and Li, 104 Cal L Rev at 343 (cited in note 236) (“The Court, however, has never squarely addressed the status of the poor under the suspect class standard.”); Rose, 34 Nova L Rev at 419 (cited in note 326) (concluding that the Court misconstrued its own prior rulings when stating that precedent opposed treating the poor as a suspect class); Tribe, 90 Harv L Rev at 1083 (cited in note 28) (emphasizing key reservations in Rodriguez).
- 343See Rose, 34 Nova L Rev at 408 & nn 1–2 (cited in note 326).
- 344See Rodriguez, 411 US at 23. To wit, the Court concluded that there was no demonstrated correlation between relatively low-funded school districts and poverty, much less the kind of correlation that might support a facial claim of wealth discrimination. See id at 25. And the Court accepted the State’s representation that the school funding system was designed to promote local participation in public education, rather than to secure class favoritism. See id at 48–49.
- 345See Michelman, 83 Harv L Rev at 11–12 (cited in note 31).
- 346See id at 9–11.
- 347See id at 14–15, 35 (discussing Rawls’s then-extant writings on justice as fairness). See also John Rawls, A Theory of Justice 60–61 (Belknap 1971). In a later work, Michelman drew on John Hart Ely’s theory of representation reinforcement, which would lead to constitutionally grounded conclusions akin to the statutory ones laid out in Part III.C. See note 248 and accompanying text. See also Frank I. Michelman, Welfare Rights in a Constitutional Democracy, 1979 Wash U L Q 659, 666–85 (1979). But see John Hart Ely, Democracy and Distrust: A Theory of Judicial Review 148, 162 (Harvard 1980) (discussing difficulties regarding protected status to the poor).
- 348See Michelman, 83 Harv L Rev at 16–17 (cited in note 31) (acknowledging the incongruity between the Equal Protection Clause and assertions of minimum entitlements). See also Winter, 1972 S Ct Rev at 87 (cited in note 29) (“If the Equal Protection Clause requires absolute equality . . . the equality thus brought about seems to be within each state, not between them.”); id at 89 (“The language of the Equal Protection Clause thus seems at best very badly suited, at worst plainly hostile, to the objectives of equality under discussion.”).
- 349See text accompanying notes 338–39.
- 350See Michelman, 83 Harv L Rev at 12–14 (cited in note 31).
- 351See id at 29–30 (discussing “just wants”).
- 352For an alternative, deep account that focuses on vulnerability and dependency and is therefore arguably more consonant with the equal right principle’s emphasis on judicial action, see Robert E. Goodin, Reasons for Welfare: The Political Theory of the Welfare State 165–83 (Princeton 1988).
- 353See Liu, 61 Stan L Rev at 210–11, 232–33 (cited in note 28) (criticizing Michelman for relying on a comprehensive theory of justice, rather than contingent political agreement). See also Cass R. Sunstein, Incompletely Theorized Agreements, 108 Harv L Rev 1733, 1735 (1995).
- 354See Monaghan, 13 Harv CR–CL L Rev at 128 (cited in note 29). John Rawls himself did not present his theory of justice as a prescriptive account of judicial action. For more on Michelman’s effort to link Rawls’s work with judicial action, see Frank I. Michelman, In Pursuit of Constitutional Welfare Rights: One View of Rawls’ Theory of Justice, 121 U Pa L Rev 962, 1013–15 (1973).
- 355See Part II.B. In later work, Michelman embraced a similarly interstitial role for positive welfare rights. See Michelman, 121 U Pa L Rev at 1013–15 (cited in note 354).
- 356See notes 129 and 156 and accompanying text.
- 357See text accompanying notes 185–87 (noting that promissory constitutionalism does not aim to guarantee any particular deliberative outcome).
- 358See, for example, notes 324, 347, and accompanying text (collecting sources).
- 359See text accompanying note 263.