Cite-Seeing at the High Court

Professor Gary S. Lawson, an originalist and founding member of the Federalist Society, is regularly cited by US Supreme Court justices, especially on separation of powers and federalism questions.

US Supreme Court

It is perhaps a sign of Boston University School of Law Professor Gary S. Lawson’s lasting influence on constitutional interpretation that, in the US Supreme Court’s most recent term ending in June, three different justices cited three different publications of his to defend their positions in cases involving military courts, statutes of limitations, and immigration law.

That’s nothing new for Lawson, who attributes his frequent appearances in opinions—mostly concurrences and dissents—to the fact that a minority of legal scholars are so-called “originalists” who believe the Constitution should be interpreted in ways that are consistent with the document’s public meaning at the time of its creation.

“There’s a relatively small number of people in the academy who do work on the original meaning of anything,” he says. “It’s more likely that the stuff I write is going to come to people’s attention just because there’s less to compete with.”

But that may be overly modest. Lawson is what one might call an original originalist. He is a founding member and current secretary of the Federalist Society, which has been home to some of the country’s most famous originalists, including Justice Antonin Scalia, who died in 2016 and for whom Lawson clerked twice (once on the US Court of Appeals for the District of Columbia Circuit and once at the US Supreme Court).

One of Lawson’s first Supreme Court citations—and in his view the most important—came in 1997 when the high court ruled, in Printz v. United States, that the federal government could not require state and local law enforcement officials to conduct background checks on people who want to buy handguns. Writing for the 5-4 majority, Justice Scalia cited “The “Proper” Scope of Federal Power: A Jurisdictional Interpretation of the Sweeping Clause,” a Duke Law Journal article Lawson co-wrote in 1993, ruling that federal laws that unduly infringe on state power are not “proper” under the Tenth Amendment’s “necessary and proper clause.” (Lawson points out that sanctuary cities are using the same argument now to challenge the Trump administration’s efforts to require them to enforce federal immigration laws.)

In January of this year, more than 20 years after the Printz decision, Justice Neil M. Gorsuch cited that same article in a dissent from the majority opinion in Artis v. District of Columbia, which dealt with a federal law’s impact on a state statute of limitations law.

Separation of powers and federalism issues like those in Printz and Artis are a main focus of Lawson’s scholarship.

“Where in the Constitution does Congress have an enumerated power that lets it muck around with when state causes of action start or stop?” Lawson asks. “For someone like me, who focuses a lot on where exactly does Congress get the power to do X, these become quite interesting, serious problems.”

Lawson says he became an originalist as a student at Yale Law School (where he was part of a group of students who organized the Federalist Society’s first major event). But he distinguished his brand of originalism from that of Scalia and some other legal scholars. Scalia saw originalism as a “theory of judging,” Lawson says, while Lawson was more interested in the process of determining the meaning behind the words in the document.

“I’m asking what does the Constitution mean; he [was] asking how should courts decide cases,” Lawson explains.

Lawson, a 2017 Metcalf Award for Excellence in Teaching recipient, was also cited in dissents this term by Justices Clarence Thomas (Sessions v. Dimaya) and Samuel A. Alito (Ortiz v. United States). He said he rarely appears in majority opinions.

“Because there is not a clear, crisp majority on the Court by any means to decide cases in accordance with original meaning, I tend to show up in separate opinions,” he says.

But that may be changing. Earlier this month, President Trump nominated originalist and DC Circuit Judge Brett M. Kavanaugh to fill the seat vacated by Justice Anthony M. Kennedy. Trump has been advised in his judicial appointments by Leonard A. Leo, the Federalist Society’s executive vice president who is on leave from the organization.

“I started in this business 30 years ago, and this stuff was laughed at,” Lawson says. “Now all of a sudden it’s being taken seriously.”

Reported by Rebecca Beyer

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