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“Equal Right to the Poor” Richard M “Equal Right to the Poor” Richard M. Re† 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 implement- ing 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 vulnera- ble groups. The equal right principle should also inform what qualifies as a com- pelling or legitimate governmental interest within campaign finance jurispru- dence, 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. † Assistant Professor of Law, UCLA School of Law. Many thanks to Michelle Wilde Anderson, Will Baude, Josh Blackman, Sam Bray, Grace Bridwell, Craig Chosiad, Ryan Doerfler, Laura Donohue, Elliot Dorff, Greg Dubinsky, Kristen Eichensehr, Jonah Gelbach, Robert Goldstein, Mark Greenberg, Tara Leigh Grove, John McGinnis, Aaron Nielson, Jide Nzelibe, Jim Pfander, Alex Potapov, Sabeel Rahman, Larry Sager, Seana Shiffrin, Ganesh Sitaraman, Mila Sohoni, Sabine Tsuruda, Mark Tushnet, Margo Uhrman, David Waddilove, Eugene Volokh, Adam Winkler, Rebecca Zietlow, The University of Chicago Law Review, and participants in the Northwestern Constitutional Law Colloquium, the University of Pennsylvania Legislation Workshop, the Junior Scholars Federal Courts Workshop, and the UCLA School of Law Faculty Colloquium. 1149 1150 The University of Chicago Law Review [84:1149 INTRODUCTION .................................................................................................. 1150 I. HISTORICIZING EQUAL RIGHT ..................................................................... 1157 A. The Bible ........................................................................................... 1157 B. British Practice ................................................................................. 1160 C. American Law ................................................................................... 1163 II. UNDERSTANDING EQUAL RIGHT ................................................................. 1167 A. Statutory Interpretation ................................................................... 1167 B. Promissory Constitutionalism .......................................................... 1177 III. IMPLEMENTING EQUAL RIGHT .................................................................... 1189 A. Adjudicative Equality ....................................................................... 1189 B. Canon of Interpretation .................................................................... 1197 C. Governmental Interests .................................................................... 1203 D. Protected “Class” ............................................................................... 1209 CONCLUSION ..................................................................................................... 1216 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 INTRODUCTION 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 “Absolutely,” Roberts replied. After all, “the judicial oath talks about doing justice without regard to persons, to rich and to poor.”3 So it’s “critically important,” Roberts continued, “to appreciate that there are going to be interests who, for one reason or another, don’t have the same resources as people on the other side.”4 1 28 USC § 453. 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. 3 Roberts Hearings, 109th Cong, 1st Sess at 448–49 (cited in note 2). 4 Id at 449. 2017] “Equal Right to the Poor” 1151 Roberts was referring to the statutory oath of office taken by every federal judge.5 In the Judiciary Act of 1789,6 the First Congress required that all federal judges “solemnly swear or af- firm” that they would, among other things, “do equal right to the poor and to the rich.”7 That statutory oath requirement, which I call “the equal right principle,” remains in place today.8 Remarkably, the language in question long predates the United States. For centuries, British judges were instructed to “do equal right to the Poor, and to the Rich.”9 And similar injunctions ap- pear among the ancient judicial duties set out in the biblical texts of Exodus, Leviticus, and Deuteronomy.10 What does this evocative oath mean? On its face, the com- mand 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 And in applying not only “to the poor” but also “to the rich,” the oath conveys that even vast disparities in wealth must be met with “equal” provision of “right.”12 In short, the equal right principle obligates federal judges to honor an unspecified form of economic equality. That basic idea can be fleshed out via either of two broad approaches.13 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 5 See id at 448–49. 6 1 Stat 73. 7 Judiciary Act of 1789 § 8, 1 Stat at 76, 28 USC § 453. 8 Federal judges also take the general federal oath to “support and defend the Constitution.” 5 USC § 3331. 9 The Book of Oaths and the Several Forms Thereof, Both Ancient and Modern 176 (1689). See also Part I.B. 10 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”). 11 See notes 91–92 and accompanying text. 12 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 ex- ample, 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 depri- vation of a meaningful opportunity to enjoy that benefit”); US Department of Health and Human Services, U.S. Federal Poverty Guidelines Used to Determine Financial Eligibil- ity for Certain Federal Programs (Jan 26, 2017), archived at http://perma.cc/LR6J-YL46. 13 See Aviam Soifer, Law and the Company We Keep 134, 167 (Harvard 1995). 1152 The University of Chicago Law Review [84:1149 simply follow separate sources of law, wherever they lead.14 Fed- eral judicial duty would thus be unchanged if Congress had omitted any mention of “the poor” and “the rich” and had instead demanded, for example, equal right “to the short and to the tall.” In fact, this reading would cast the equal right principle as a merely rhetorical flourish, because the federal judicial oath in- cludes separate commitments to impartiality and lawfulness.15 A stronger version of formal equality is also possible, as the equal right principle could be read as a statutory ban on considering wealth disparities or accommodating poverty. These arguments are not merely hypothetical. Courts, legislators, and scholars have enlisted formal equality readings to oppose judicial “empathy” for the poor.16 And those readings could call into question such entrenched accommodations
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