David Barron was appointed to the US Court of Appeals for the First Circuit in 2014 and has served as Chief Circuit Judge since 2022. He holds degrees from Harvard College and Harvard Law School. His career includes newspaper reporting, clerkships with Ninth Circuit Judge Stephen R. Reinhardt and US Supreme Court Justice John Paul Stevens, professorships, and two stints at the US Department of Justice. In 2010, he rejoined his alma mater’s faculty and the following year was named the S. William Green Professor of Public Law. He still holds a visiting professorship there.
Here is the Q+A between Judge Barron and BC Law Dean Odette Lienau.
OL: As has been much discussed, an independent judiciary is foundational to the rule of law. Judges have traditionally relied on the legitimacy of their offices—and public faith—as shields for legal efficacy. Are those shields weaker than they used to be? If so, might that affect the norms that ensure a stable and just society?
DB: For a number of years, in almost all Western countries with a tradition of independent judiciaries, polarization has put pressure on these norms. That is a source of concern. But the notion that people who are lodging threats would actually be able to get their way and influence decisions is, I think, not well founded.
A larger concern is that, if those pressures continue, it reflects a sense that what we want out of judges is to get “our way” rather than to have them decide matters independently. The whole idea of independence only works if people believe independence is worth having. But one thing that does give me some comfort is that people should not expect—and probably deep down don’t expect—that those pressures have any influence on the judges deciding their cases.
OL: You talked about polarization. Could you see judges as potentially contributing to the depolarization of society—is there an element of agency here for judges? Or to what extent is the judiciary largely passive in that specific space?
DB: I think Justice Kagan has made this point—that judges who talk about the importance of independence have a responsibility to model it themselves. And this is not all about publishing decisions that aren’t popular or that people disagree with. It is about the way judges conduct themselves off the bench, the language they use when writing their decisions, and the quality of their reasoning—which can contribute to the sense that they are faithful to the office that they hold.
“Cases don’t just come out of nowhere. They are reflective of the disputes that go on within society. Those conditions that give rise to a dispute can be quite relevant to understanding how to apply the legal circumstances to the facts of that case.”
US Court of Appeals First Circuit Chief Judge David Barron
OL: Do you think our particular political moment has shifted what judges are doing?
DB: It’s a mistake for judges to start changing the way they do things based on the particular controversy around a case. In very high-profile cases, the stakes are higher than the individual parties before you, and you’re aware that scrutiny comes with this dimension. But judges generally understand that every case is just as important to the particular litigants as you could possibly imagine. A small case—say a social security disability case—is, in a sense, very individualized. It may not have significant precedential impact. But, for the person claiming the disability entitlement, it probably is as important as anything could be.
And cases don’t just come out of nowhere. They are reflective of the disputes that go on within society. Those conditions that give rise to a dispute can be quite relevant to understanding how to apply the legal circumstances to the facts of that case. So, you don’t want to be blind to that either.
OL: You’ve taught law for years. Could you share your thoughts on pedagogy at this time?
DB: It’s really important to teach students to think hard about what they mean when they say things like, “Well, judges can do whatever they want,” or “they could go either way.” And what do we mean—how do we approach the conversation—when we’re exposing them to what used to be called gaps, conflicts, ambiguities, and legal choice? There is an easy cynicism that, if you’re not careful as a teacher, you can contribute to or lead people to fall into. It is important for teachers to help students see that maybe the exercise of discretion doesn’t mean you can just do whatever you want—and that judgment isn’t simply an act of will or winning.
OL: What gives you hope about the legal profession today?
DB: Our legal traditions, which are sometimes too quickly dismissed, seem to me still deeply rooted in the country: [judicial] independence, a rule-of-law culture, a basic respect for individual rights, and concern about arbitrary treatment. And, at base, that set of commitments underlies why we have a legal profession that’s treated as a profession—and a set of actors called judges who are responsible for resolving those disputes. Those commitments have obviously failed at times—we can see that from many, many different eras in the country’s history, and at great cost to many, many people. But we have had the capacity to self-correct. So as long as those commitments seem strong, I don’t see any reason not to be hopeful.