A word for David Stras

President-elect Trump’s “thank you” tour touched down in Fayetteville, North Carolina last night. Trump formally introduced General Mattis as his appointed Secretary of Defense and mentioned that his prospective Supreme Court appointment is coming soon. Here I would like to put in a good word for Minnesota Supreme Court Justice David Stras.

Speaking last month as the keynote speaker at the Twin Cities Cardozo Society, Justice Stras drew life lessons from his grandfather. The speech reflects Justice Stras’s engaging personal qualities. I recently posted the video of the speech in “Justice Stras remembers his grandfather” and hope to return to the personal aspect of Justice Stras’s qualifications in another post. The talk gives a good sense of the man.

Trump included Justice Stras on his first list of candidates from whom he would make his appointment this past May. The AP quoted “veteran court watcher” Peter Knapp, a professor at the Mitchell Hamline School of Law, describing Justice Stras as “a very principled, very thorough, very intelligent judge.” Professor Knapp put it this way: “He’s very, very careful to observe the limits of the court’s power and I would think that would make him an attractive candidate for any Republican, not just Mr. Trump.”

Justice Stras served as a law clerk to the late Ninth Circuit Judge Melvin Brunetti and Fourth Circuit Judge Michael Luttig. He later served as a law clerk to Supreme Court Justice Clarence Thomas. As the AP noted, Justice Thomas even traveled to Minnesota to administer the oath when he took office on the Minnesota Supreme Court. Justice Thomas observed that Stras was prepared for the job “by training, by experience, by disposition.” The same applies to his possible Supreme Court appointment.

Justice Stras has served on the Minnesota Supreme Court for six-and-a-half years. His opinions on the court provide a sense of his judicial philosophy. They show consistent respect for constitutionally limited government as well as an originalist/textualist approach to constitutional and statutory interpretation.

Justice Stras respects the role of the judiciary and the Constitution’s separation of powers. Justice Stras holds that the judiciary “does not write statutes; nor do we amend them; no matter the circumstances.” State v. Ali, 855 N.W. 2d 235, 268 (Minn. 2014) (concurring). Justice Stras’s concurrences and dissents, in particular, repeatedly emphasize that courts are bound to respect “fundamental limitations on our authority[.]” He holds that courts are to resist the temptation to encroach on legislative functions and become “a junior-varsity legislature.” In re Guardianship of Tschumy, 853 N.W.2d 728, 752-53 (Minn. 2014) (dissenting); State v. Crawley, 819 N.W.2d 94, 118 (Minn. 2012) (dissenting).

Justice Stras’s views on the role of the judiciary arise from an appreciation of constitutional separation of powers. In State v. M.D.T., 831 N.W.2d 276 (Minn. 2013), Justice Stras described in detail the strict separation of powers required by Minnesota’s Constitution and concluded that the district court abused its discretion by relying on inherent judicial authority to order relief beyond what was provided in the statute at issue.

Justice Stras’s objection to the district court order went beyond the fact that the court acted beyond its authority. Instead, Justice Stras pointed to the constitutional significance of judicial encroachment in an area where the legislature was authorized to act. Proper respect for the separation of powers is urgent as the Court addresses constitutional limitations on its own power as well as limitations on an administrative state that has undertaken the role of all three branches.

Justice Stras is an originalist and a textualist. Like the opinions by Justice Scalia, Justice Stras’s decisions are notable for a rigorous analysis of statutory and constitutional text that interprets the text as it was understood at the time of its adoption. In State v. Nelson, 842 N.W.2d 433 (Minn. 2014), Justice Stras rigorously analyzes the text of the statute text, citing multiple dictionaries. Justice Stras’s majority opinion credits the statute as written over what other judges viewed as the historical understanding and intent underlying the statute.

Perhaps the best example of Justice Stras’s originalist approach comes in United Prairie Bank v. Haugen Nutrition & Equip., LLC, 813 N.W.2d 49 (Minn. 2012). The case involved the question of whether a party seeking contractual attorney fees is entitled to a jury trial under Minnesota’s Constitution. Justice Stras first addressed the question whether a party would have been entitled to a jury based on the same theory of relief at the time Minnestoa’s Constitution was adopted and then assessed the plaintiff’s claim in light of similar theories. United Prairie Bank shows Justice Stras following Justice Scalia’s model by making the intellectual case for originalism and pushing his colleagues to apply the text of the Constitution as written.

Based on his record, I think we know that Justice Stras would follow in the footsteps of Justice Scalia. I hope he has the chance.

NOTE: I would like to acknowledge the research assistance of Minneapolis attorney David Asp in the preparation of this post.

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