Todd Butler’s Controversial Publications

After dinner this evening, I conducted a focused review of the writings of Todd Butler, the latest Fifth Circuit nominee from President Trump. Although Butler has spent nearly twenty years in private practice, he has produced several articles and has served as an Adjunct Professor at the University of Mississippi Law School (though I’m not certain which courses he taught).

Here are some of his published works:

• A Matter of Positivism: Evaluating the Legal Philosophy of Justice Antonin Scalia Under the Framework Set Forth by H.L.A. Hart, 12 HOLY CROSS J.L. & PUB. POL’Y 47, 64 (2008).
• RECIPE FOR DISASTER: ANALYZING THE INTERPLAY BETWEEN THE CASTLE DOCTRINE AND THE KNOCK-AND-ANNOUNCE RULE AFTER HUDSON V. MICHIGAN, 27 Miss. C. L. Rev. 435 (2008).
• HECK, EXCESSIVE FORCE, AND THE FIFTH CIRCUIT, 29 Miss. C. L. Rev. 529 (2009)
• FOREWORD: CELEBRATING THE LIFE AND LEGACY OF THURGOOD MARSHALL, 27 Miss. C. L. Rev. 289 (2008)
• JUDGE SOUTHWICK THE OPINION WRITER, 37 Miss. C. L. Rev. 43 (2018)
• AN INTERVIEW WITH CHIEF JUDGE SHARION AYCOCK, 39 Miss. C. L. Rev. 413 (2021)

I haven’t examined the articles in depth, but a common thread appears to be a critique of Justice Scalia.

For instance, in his student note, Butler leans toward Justice Breyer’s dissent rather than Scalia’s majority stance in Hudson v. Michigan:

Where Scalia’s Fourth Amendment balancing starts from social costs, Breyer’s approach begins with deterrence. By weighing factors like duration, potential damages, and litigation costs, Breyer argued that § 1983 lawsuits fail to deter adequately. He also dismissed the idea that merely better-trained police officers offer sufficient deterrence. . . .

Breyer’s dissent in Hudson v. Michigan rightly pointed out that the Court undermined the strongest legal incentive to comply with the knock-and-announce requirement by declining to remedy the violation with the exclusionary rule. The Court’s various deterrence substitutes proposed by Scalia fell short of ensuring police compliance. . . .

Similarly, internal policing procedures appear insufficient to deter noncompliance with the knock-and-announce rule. Although Scalia reached the opposite conclusion after noting the growing professionalism of officers, he did not identify the fundamental reason why professionalism has risen in the first place. As one commentator observed, the rise of professional policing—driven by the exclusionary rule—produced more robust internal discipline; removing that foundation could erode the professionalism itself.

Butler is also highly critical of the Castle Doctrine.

Critics argue that the Castle Doctrine cultivates a “trigger-happy” mindset in ordinary citizens. The laws receive extensive media attention, and the phrase “shoot first, ask questions later” is commonly associated with the doctrine. One commentator noted that it propagates a confusing message to the public about when lethal force may be used with impunity. . .

The Supreme Court’s Hudson v. Michigan decision could intensify confrontations between homeowners and police. Although none of the Justices expressly invoked the Castle Doctrine in their opinions, the practical impact of the decision is revealing. By dampening the incentive to observe the knock-and-announce rule, the Court left homeowners exposed to surprise encounters with law enforcement. This vulnerability creates significant challenges for both officers and residents because of the mindset the Castle Doctrine can foster.

Today, thirty-five states remain without the Castle Doctrine as a formal doctrine. Legislators in those states should approach the Hudson ruling cautiously, mindful of the projection offered in this note. Rather than yielding to powerful lobbying, lawmakers should prioritize protecting human life by resisting a mentality of “shoot first, ask questions later.” Citizens in current Castle Doctrine jurisdictions might soon wish their legislators had followed that path.

Butler does not mention Heller or the Second Amendment anywhere in his note. It seems plausible that many conservatives favor a broad application of the Castle Doctrine and do not characterize those who exercise self-defense as “trigger-happy.”

Butler’s Holy Cross Law Review piece argues that Justice Scalia fits a positivist mold. Here, he appears skeptical of Scalia’s “unrelenting emphasis on history and tradition,” and he at least seems receptive to Justice Brennan’s perspective.

Throughout Scalia’s entire opinion, his gaze remains fixated on history and tradition. His attempt to define “liberty” by relying on historical facts reveals a positivist philosophy and an insistence on a fixed constitutional meaning. As noted, Scalia combed through common law to conclude that family preservation historically trumped the rights of unmarried fathers. His method resembles a positivist approach that looks to social facts and conventions to validate rules. . . .

The clash between Scalia and Brennan over the meaning of “liberty” offers the answer to the earlier question. Simply put, expecting unanimity among all decision-makers is unrealistic. Our pluralistic society values majority viewpoints, and by doing so, we accept a predictable, though imperfect, legal system.

Butler reiterates the charge that Scalia is “anti-gay.”

The label of Scalia as a “separationist” has not escaped challenge entirely. Critics argue that Scalia often injects his own moral beliefs into the law through his judicial opinions. Dissenting remarks in cases like Lawrence v. Texas and Romer v. Evans are frequently cited as evidence of his alleged “anti-gay moral views.”

Butler offers no counter to this accusation.

Moreover, Butler appears to critique Scalia’s view that the Constitution is “determinate” in a rather narrow sense:

In Scalia’s thought, there is little room for discretion because he treats the Constitution as fixed. Consider his remarks from a Delaware university talk: “The Constitution means what it says. Determine what it was understood to mean at the time of adoption, and that’s the end of it. If you desire more rights, create them by statute. If you want more constitutional rights, amend the Constitution.” In his view, appellate judges engage in “judicial activism” when they interpret the Due Process Clause to extend liberty beyond enumerated rights. By insisting that the Constitution’s meaning is fixed, he would bar judges from employing changing constitutional interpretations. Consequently, rules of change become pivotal to his theory of law. . . .

More precisely, Scalia frames his textualist constitutional interpretation as originalism. Under this doctrine, he is not trying to uncover the original intentions of the drafters. Rather, he seeks the “original meaning of the text,” implying that the Constitution today should be understood the same as it was over two centuries ago. . . .

In contrast, Scalia claims to rely on the text’s original meaning as his sole criterion for resolving even thorny constitutional questions. This stance signals his assumption that the Constitution is determinate or, if not, that judges lack the authority to interpret it when its meaning is indeterminate.

Butler characterizes Scalia’s dissent in Stenberg v. Carhart, the case about partial-birth abortion, as “biting.” He implies that this dissent represents “the spawn of Scalia’s political agenda.”

Scalia’s sharp dissent in Stenberg v. Carhart reflects his stance. Nebraska had enacted a law banning partial-birth abortion, but the Court overturned it, citing Planned Parenthood of Southeastern Pennsylvania v. Casey. Scalia argued for judicial restraint and criticized the Court for taking up the case at all: “If the Court’s own preservation is the motive, it should return this issue to the people—where the Constitution, in its quietness on the matter, left it—and let States decide, state by state, whether this practice should be allowed. Casey should be overruled.”

Which portion of this passage does Butler challenge? After all, the very lawyer who helped place Roe v. Wade in its proper historical context happens to hail from Mississippi.

Butler even contends that we should welcome diversity on the Supreme Court rather than seek more jurists closely aligned with Scalia:

At 71, it’s unclear how much longer Scalia will serve. When the moment arrives—whether by death or resignation—the discussion of his philosophy will accompany any confirmation. Those who prize predictability and restrained judging would likely favor nominees who adhere to a positivist theory. Others, however, would prefer not to see a nominee with even a remote resemblance to Scalia. Ultimately, the nation benefits from a Court that features a range of judicial philosophies. Intellectual debate fuels innovation and debate, and we need both now more than ever to push society forward.

If the presidency had been held by a Democrat and the Senate controlled by Republicans, Butler would be a natural choice. Yet for President Trump to nominate someone who openly questions Scalia? That raises concerns. There is much more to come.