Judge David Barron Discusses Judging and Scholarship
The American Constitution Society at UVA Law hosted David Barron, Chief Judge of the United States Court of Appeals for the First Circuit, on Friday, April 11. Judge Barron served as a professor at Harvard Law School and worked in the Office of Legal Counsel (“OLC”) in the United States Department of Justice before his appointment to the bench by President Barack Obama.
The talk began by going through Judge Barron’s background. He grew up in a family of lawyers in Northern Virginia but began his career covering the police as a journalist for the Raleigh News & Observer. He didn’t enjoy late nights listening to the police scanner and decided to attend law school. As he observed, coming to law school with some work experience was much less common then than it is now, creating a different environment. Students who know what it’s like to work are more grateful to be back in school, and there is at least a perception that they “know what’s up.”
Judge Barron found that he preferred a more analytical role over an adversarial position, which attracted him to clerking, the OLC, and academia. He clerked for Judge Stephen Reinhardt on the Ninth Circuit and Justice John Paul Stevens on the Supreme Court. He described Judge Reinhardt as a mentor, saying that it was inspiring to see someone so engaged in a rewarding career. He also said that judges come to their work with different personalities. Some judges, like him, are “anxious” and pore over each side’s arguments. Others are more relaxed. He recalled that Justice Stevens sometimes laughed when he read briefs, as if thinking to himself, “Really? That’s what you’re arguing?”
After clerking, Judge Barron joined the OLC, which advises the executive branch on legal issues. He compared the job to solving issue spotters: “You go out to lunch, you come back, it turns out the Affordable Care Act is on your chair, ‘Please review it and see if there are any Constitutional problems.’” He said his experience made him more hesitant to resolve issues that have not been fully briefed already.
He also gave more practical career advice. First, he encouraged students to take a government job early in their career if they are interested and have the chance. The right opening in government won’t always be there, and when it does open up, having a background in it will be helpful in reentering. For students who are interested in clerking, he advised them to consider traveling to somewhere they wouldn’t have expected to be and to show enthusiasm for the job—but also noted it’s not for everyone, and students can have a great career without clerking.
Asked about the influence of politics on judges, Judge Barron said it was difficult to synthesize two perspectives. As an observer, it’s natural to take an “external” perspective that traces decisions to the politics of the president who appointed the judge. He acknowledged that judges are appointed by a political process and that decisions often do line up with political orientations. From the internal perspective of a judge, though, he said that he always thought of himself as deciding cases according to the facts and the law. He recognized the puzzle that both perspectives could be true.
He also spoke about his scholarly writing. Waging War: The Clash Between Presidents and Congress, 1776 to ISIS grew out of an interest in war powers law that began with enhanced interrogation in the George W. Bush Administration. As he studied the issue, he engaged more with narrative history than legal formalism, finding that the law has reflected a “balancing act” as the three branches of government try to avoid direct confrontation. There are few bright-line rules but many informal norms that limit the President’s discretion. In “The Court of History,” he observed that although the debate between originalism and living constitutionalism seems to turn on the role of the past, judges of all stripes are also oriented to the future. They know that past decisions that were uncontroversial in their time have been “overruled in the court of history” and want to ensure that they do not suffer the same fate.
Judge Barron also addressed the relationship between judging and academia more generally. Although individual decisions are rarely directly influenced by scholarly writing, scholarship at its best redefines the terms of the issue, he said. Legal realism, originalism, and textualism were all scholarly ideas that have profoundly shaped judging. Judges who don’t see the influence of scholarship, like students who think they learn nothing in the classroom, are like fish swimming in water; they’ve simply internalized the surrounding legal culture.
