Todd Butler’s Problematic Publications

After dinner this evening, I did a bit of research into the publications of Todd Butler, President Trump’s latest nominee to the Fifth Circuit. Despite serving in private practice for nearly two decades, Butler has published several articles. He has also served as an Adjunct Professor at the University of Mississippi Law School. (I am not sure what he taught).

Here are some of his publications:

I haven’t studied the articles carefully, but one through line seems to be a criticism of Justice Scalia.

For example, in his student note, Butler favors Justice Breyer’s dissent over Justice Scalia’s majority opinion in Hudson v. Michigan:

While Justice Scalia applied the Fourth Amendment balancing test by starting with social costs, Justice Breyer turned first to deterrence.Considering factors such as time, recoverable damages and money spent on litigation, Justice Breyer argued that § 1983 suits are an insufficient deterrence.Also, he swiftly dismissed the notion that “better trained police” provide adequate deterrence.. . . .

Justice Breyer’s dissenting opinion in Hudson v. Michigan aptly noted that “the Court destroy[ed] the strongest legal incentive to comply with the Constitution’s knock-and-announce requirement” when it refused to remedy the violation with the exclusionary rule.161 While Justice Scalia offered several deterrent substitutes, each is insufficient to ensure law enforcement compliance. . . .

Likewise, internal police procedures are inadequate to deter non-compliance with the knock-and-announce rule. Although Justice Scalia came to the opposite conclusion after noting the “increasing professionalism” of police officers,he failed to discern the principle reason why this increasing professionalism actually exists. As one commentator noted, “the increasing professionalism of police departments that has resulted in more effective internal discipline was itself a result of the exclusionary rule.”It follows that if the underpinning is removed, the increasing professionalism will also disappear.

Butler is also very critical of the castle doctrine.

Importantly, critics insist that the Castle Doctrine creates a “trigger-happy” mentality in citizens’ minds.The laws receive extensive media coverage and the phrase “shoot first, ask questions later” is often used to describe the Castle Doctrine.One commentator noted that “[the doctrine] sends a very confusing message to the citizens . . . about when they can use lethal force with impunity.”. . .

The Supreme Court’s decision in Hudson v. Michigan will bolster violent encounters between police officers and homeowners. Although none of the Justices referenced the Castle Doctrine in their opinions, the importance of the doctrine is implicit when considering the practical effects of the case. By removing the incentive to comply with the knock-and-announce rule, the Court left homeowners vulnerable to surprise encounters with law enforcement officers. This vulnerability poses significant problems for both police officers and citizens because of the trigger-happy mindset created by the Castle Doctrine.

Thirty-five states currently remain “Castle Doctrine Free.” Legislators in these states should be wary of the Hudson decision because of the prediction set forth in this Note. Instead of falling victim to powerful lobbying efforts, legislators should opt to protect human life by declining to provide citizens with a “shoot first, ask questions later” mentality. Citizens in current Castle Doctrine states may soon wish their lawmakers had done the same.

Butler does not mention the then-pending Heller case or the Second Amendment anywhere in his note. I suspect that most conservatives favor a broad application of the castle doctrine, and do not describe those exercising their right of self-defense as “trigger-happy.”

Butler’s article in the Holy Cross Law Review argues that Justice Scalia is a positivist. Here, he seems critical of Scalia’s “relentless focus on history and tradition.” And he at least seems receptive to Justice Brennan’s view.

Throughout his entire opinion Justice Scalia relentlessly focused on history and tradition. His attempt to define “liberty” with the use of historical facts reveals his positivistic philosophy and his acceptance of a fixed constitutional meaning. 99 As noted above, Justice Scalia searched the common law and found that family preservation had traditionally trumped the parental rights of unmarried fathers. The essence of his search is akin to the positivistic approach of employing the rule of recognition by looking to social facts and conventions. . . .

The battle between Justice Scalia and Justice Brennan over the meaning of the word “liberty” reveals the answer to the above-mentioned question. Simply put, it is delusional to aspire for unanimity among all decision makers. Our society, although pluralistic, gives credence to majority views. In doing so, we accept a legal system that is predictable, albeit imperfect.

Butler repeats the charge that Scalia is “anti-gay”

The classification of Justice Scalia as a “separationist,” however, has not gone completely unchallenged. Many critics contend that Justice Scalia often submits his own view of morality into the law through his judicial opinions. By way of examples, opponents often cite Justice Scalia’s dissenting opinions in Lawrence v. Texas and Romer v. Evans.'” These opinions, critics suggest, illustrate Justice Scalia’s “anti-gay moral views.””

Butler offers nothing to rebut this slander.

Butler further seems critical of Scalia’s “narrow” view that the Constitution is “determinate”:

There is no room for discretion, in Justice Scalia’s view, because he believes the Constitution is determinate. Consider the statements he provided last month at a Delaware University lecture: “The Constitution means what it says. You figure out what it was understood to mean when it was adopted and that is the end of it. If you want more rights, create them by statute. If you want more constitutional rights, create them by amending the Constitution.”In his view, appellate judges engage in “judicial activism” when they broadly define the concept of liberty under the Due Process Clause.’ By incorporating a wide array of unenumerated rights into the Constitution, Justice Scalia contends that judges are usurping the role of elected lawmakers. This result is intolerable for him since the rules of adjudication provide no authority for judges to utilize the rules of change. Given Justice Scalia’s narrow interpretation of the judiciary’s role, rules of change become increasingly important under his legal theory. . . .

More specifically, Justice Scalia refers to his method of textualist constitutional interpretation as originalism. Under this approach, Justice Scalia does not seek to determine the original intentions of the constitutional drafters. 42 Instead, he aims to discern the “original meaning of the text.”‘ Said differently, Justice Scalia believes that the Constitution means the same thing today as it did when it was ratified over two hundred years ago. . . .

Justice Scalia, on the other hand, purports to use the text’s original meaning as his only criteria for resolving even difficult constitutional questions. This approach demonstrates his assumption that the Constitution is determinate or, in the alternative, that judges lack the authority to interpret the Constitution when it is indeterminate.

Butler described Scalia’s dissent in Stenberg v. Carhart, the partial-birth abortion case, as “stinging.” And he suggests this dissent is “the spawn of Justice Scalia’s own political agenda.”

Justice Scalia’s stinging dissent in Stenberg v. Carhart underscores his position. There, the state of Nebraska passed a statute prohibiting partial-birth abortion.The Court, however, overruled the Eighth Circuit Court of Appeals and determined that the Nebraska statute was unconstitutional for the reasons set forth in Planned Parenthood of Southeastern Pennsylvania. v. Casey. Rejecting the underlying premise of Casey, Justice Scalia advocated judicial restraint and chastised his colleagues on the Court for exercising jurisdiction over the case: “If only for the sake of its own preservation, the Court should return this matter to the people – where the Constitution, by its silence on the subject, left it – and let them decide, State by State, whether this practice should be allowed. Casey must be overruled.”‘

Here is the dissent that Butler thinks is political:

I am optimistic enough to believe that, one day, Stenberg v. Carhart will be assigned its rightful place in the history of this Court’s jurisprudence beside Korematsu and Dred Scott. The method of killing a human child-one cannot even accurately sayan entirely unborn human child-proscribed by this statute is so horrible that the most clinical description of it evokes a shudder of revulsion. And the Court must know (as most state legislatures banning this procedure have concluded) that demanding a “health exception”-which requires the abortionist to assure himself that, in his expert medical judgment, this method is, in the case at hand, marginally safer than others (how can one prove the contrary beyond a reasonable doubt?)-is to give live-birth abortion free rein. The notion that the Constitution of the United States, designed, among other things, “to establish Justice, insure domestic Tranquility, … and secure the Blessings of Liberty to ourselves and our Posterity,” prohibits the States from simply banning this visibly brutal means of eliminating our half-born posterity is quite simply absurd.

Which part of this passage does Butler disagree with? You know, the lawyer who actually relegated Roe v. Wade to its rightful place in history is also in Mississippi.

Butler actually says we should have “diversity” on the Supreme Court and not seek more jurists in the mold of Justice Scalia:

At 71 years old, it is unclear how long Justice Scalia will remain on the bench. When he either dies or resigns, his philosophy likely will be debated while confirming a successor. For those who favor predictability and judicial restraint, any member nominated to the Court would be applauded for adhering to a theory of legal positivism. Conversely, others would seek to reject any nomination with even remote similarities to Justice Scalia. Ultimately, it is crucial that we aim for diversity on the Court. In my opinion, the American people are best served when judicial philosophies vary. Intellectual debate sparks creativity and controversy. We need both, perhaps more than ever, to move our society forward.

If there was a Democratic president and a Republican Senate, Butler would be a natural pick. But for President Trump to pick someone who actively criticizes Justice Scalia? There are problems. Much more to come.