Judge Rao’s Unintentional Surrender: On the Augustan Settlement of Our Law by Adrian Vermeule, Conor Casey :: SSRN

 In addition to my general interest in Adrian Vermeule's thinking on "common good constitutionalism" any serious critique of Judge Neomi Rao is notable. 

- GWC

Judge Rao’s Unintentional Surrender: On the Augustan Settlement of Our Law - SSRN

6 Pages Posted:

Adrian Vermeule

Harvard Law School

Conor Casey

University of Surrey

Date Written: August 25, 2023

Abstract

This short essay is a response to the 2022 Sumner Canary Memorial Lecture delivered by the Honorable Neomi Rao of the U.S. Court of Appeals for the D.C. Circuit. The lecture, entitled "Textualism's Political Morality", was delivered at Case Western Reserve University and was intended by Judge Rao as a defense of textualism against, amongst other critics, proponents of common good constitutionalism.

Our main critique is that Judge Rao has continued a recent trend, in which textualists have in effect allowed a kind of Augustan settlement of our law. Like the senators and optimates of Rome under Augustus, they have been content with retaining the outward forms and labels of the regime to which they are wedded, while ceding the operative content of the law to rule by other principles — in this case, principles of the classical legal tradition promoted by common good constitutionalists.