This week, Roger welcomes Judge Gregory E. Maggs to discuss the role of the U.S. Court of Appeals for the Armed Forces, the concept of originalism in constitutional law and the importance of civic education. Plus, Judge Maggs shares insights on the quality of TFAS Law Fellows and the practical education they receive, as well as his experiences in the JAG Corps.
Judge Gregory E. Maggs was appointed to be a judge on the U.S. Court of Appeals for the Armed Forces in 2018 and prior to that, he taught full-time at The George Washington University Law School and served in the U.S. Army Reserve, Judge Advocate General’s Corps, from 1990-2018, where he retired as Colonel upon his appointment as judge. His experience includes service as a special master for the U.S. Supreme Court, as a consultant to Independent Counsel Kenneth Starr in the Whitewater Investigation and notably clerked for Anthony M. Kennedy and Clarence Thomas.
He currently teaches the Constitutional Originalism course for the TFAS Summer Law Fellowship and remains a professorial lecturer at George Washington University Law School.
Episode Transcript
The transcript below is lightly edited for clarity.
Roger Ream [00:00:02] Welcome to the Liberty + Leadership Podcast, a conversation with TFAS, alumni, faculty and friends who are making an impact today. I’m your host, Roger Ream. Today I’m delighted to welcome Judge Gregory E. Maggs. Judge Maggs was appointed to be a judge on the U.S. Court of Appeals for the Armed Forces in 2018. Prior to that, he taught full-time at The George Washington University Law School. His experience includes service as a special master for the U.S. Supreme Court as a consultant to independent counsel Kenneth Starr in the Whitewater investigation. And most notably, he clerked for Justices Anthony M. Kennedy and Clarence Thomas. Judge Maggs served in the U.S. Army Reserve Judge Advocate General’s Corp from 1990 until 2018, where he retired as colonel, upon his appointment as a judge. He currently teaches the Originalism course for the TFAS Summer Law Fellowship and remains a professorial lecturer at George Washington University’s Law School. Judge Maggs, welcome to the show.
Judge Gregory E. Maggs [00:01:12] Thank you very much for having me.
Roger Ream [00:01:13] I’d like to begin by having you explain to listeners the role of the U.S. Court of Appeals for the armed forces.
Judge Gregory E. Maggs [00:01:22] Well, the story behind that really goes back to World War II. In World War II, there were about 15 million Americans under arms. And believe it or not, during that time, about 2 million trials by court martial took place. And at that time, there was no civilian court to which they could appeal. And after World War II, there was a thought that perhaps either the trials weren’t fair or they weren’t perceived to be fair and that a possible solution would be to create a civilian court that would oversee the military justice system. And so, that’s where we stand now. So, if a soldier, sailor, Marine, Coast Guard commits a crime and is tried by court martial, they first appeal to a service court. So, in the Army, it’d be tried by an army court martial and then appealed to the Army Court of Criminal Appeals. And then you could petition our court for review. We are a five-judge civilian court that reviews all of the trials by court martial throughout the entire system. And then we’re reviewed by the U.S. Supreme Court.
Roger Ream [00:02:21] Do you generally use the U.S. Constitution to adjudicate cases, or do you also look to military rules and procedures?
Judge Gregory E. Maggs [00:02:30] Well, all of our cases are criminal cases, and I would say they fall into three categories. Some involve procedural issues, some involve evidentiary issues and some just questions of statutory interpretation as to what is the crime or what isn’t a crime. And constitutional issues come up throughout just as they would in a U.S. district court or U.S. Court of Appeals concerning federal criminal cases: First Amendment rights, Fourth Amendment rights, and so forth.
Roger Ream [00:02:56] Have you had any surprises or challenges since you’ve been on the court that you kind of didn’t expect before you joined it? Or is it pretty much what you expected?
Judge Gregory E. Maggs [00:03:04] It was surprising in some ways. Now, before I joined it, I had been a reserve JAG officer in the Army for 28 years, and for about ten of those years I had been either a trial judge or an appellate judge on the Army Court of Criminal Appeals. So, I had done several hundred cases before I ever got here. It’s a big difference. When you’re the trial judge, you just make a decision. You don’t have to get anybody to agree. If counsel makes a motion, you decide it. The Army Court of Criminal Appeals will run three judge panels, and we make a lot of decisions, but it’s pretty easy with three people. When you get five people in the mix, it just takes a lot longer. So, in a three day sexual assault trial, as a trial judge, I decide 30 issues, but we decide about 30 issues a year here. So, the level of depth is much greater here, and that’s why it takes so much longer.
Roger Ream [00:03:58] Shifting a little, you teach a course on the U.S. Constitution for our Law Fellows program, and specifically you focus on originalism. I’ve learned that the word originalism has many meanings to many different people. Could you kind of explain the concept of originalism and how you approach that course?
Judge Gregory E. Maggs [00:04:17] So, the course is called “The Debate About Originalism” and the question is really what is originalism and is it a good idea or a bad idea? Is it required or not required? In simplest terms, originalism is the theory that courts, when they are deciding constitutional questions and must interpret the Constitution, that they should follow the original meaning of the Constitution as opposed to some other meaning, something that was not originally believed. But it’s a complex issue because you have to define original meaning. What do we mean by that? You have to figure out what the sources of original meaning are. And of course, you might have to think about whether there’ll be any exceptions, such as precedent, that might not be consistent with the original meaning.
Roger Ream [00:05:00] How do students kind of react to that? I mean, I assume for many, what I am told at least, that many schools don’t really focus on originalism, the original meaning of the Constitution. Constitutional law often just looks at the precedents and the key cases in more recent decades versus debates at the founding. So, how do our students react to the course you teach?
Judge Gregory E. Maggs [00:05:24] Well, you bring up two really good points. Let me address the second one that you mentioned, which is in law school, there often isn’t a lot of time in studying constitutional law to study debates about constitutional methods. There’s a lot of doctrine to learn. And to some extent, you pick it up as you go through the cases, but it isn’t separately considered as it is in this particular course. And that’s really a shame because there’s no case decided at the Supreme Court today that in which both parties aren’t making originalist arguments. And even when there’s a majority and dissenting opinion, both sides will certainly be making originalist arguments. So it’s a very important topic. Now, you ask how the students react. My view is students are there to make up their own minds. And so what I try to do is present the best arguments on both sides. So, for example, we have articles by Justice Scalia presenting arguments for originalism. And Dean Chemerinsky is a great example and professor of Berkeley and Professor Fallon at Harvard, just counterexamples with different ideas. You know, one of the problems about originalist debates is they tend to be too abstract. And so I not only talk about what the different arguments are, but we also use practical examples. We learn about the sources, and then we look at actual examples from the cases and discuss those. And I think the practical examples make it much easier to understand.
Roger Ream [00:06:52] One of my frustrations, Judge Maggs, is that many in the public in our country today think that when a decision is issued by the courts, it reflects the policy preferences or personal preferences of the judges who issue the decision and they don’t understand that the decision is based on the justices reading of the Constitution and the law. So in other words, if a case comes down that’s favorable to one side or another, they assume the judges, all who voted in the affirmative, all support that policy position. And I don’t think that’s the case. Could you address that?
Judge Gregory E. Maggs [00:07:33] Well, I do get that sense. I think you’ve accurately described it. And one of the key arguments, not the only argument, but one of the key arguments for originalism is it’s one of the only methods of interpreting the Constitution, which is consistent with democracy and the principle that we’re governed by law, which is to say that the judges, like everybody else, is bound by what the law is and they can’t just make it up. Of course, this also leads to one of the counterarguments against originalism, which is, well, if the sources are so indeterminate that we can’t actually figure out the original meaning, then maybe the judges are still making up the results and they’re just screening it with original citations. This is one of the topics that we discuss in the course. Is originalism just a smokescreen for conservative values, or is it really the case that originalists are bound by the Constitution? Some good counterexamples are where you look at cases where Justice Scalia says that it’s unconstitutional to burn the American flag. And at the same time, he says, I despise burning the American flag. You know, he says you’ve got a First Amendment right to do it. I don’t like it, but I still think you have a First Amendment right to do it.
Roger Ream [00:08:43] That is a good point of where a judge was able to very clearly distinguish his own personal preference, burning the American flag versus what he felt the Constitution allows. So that is one we should teach American people more generally about. And of course, you know, we’re very troubled at The Fund for American Studies about the surveys we see that civic education in our country, civic literacy has fallen so dramatically. And young people coming out of schools today often can’t, you know, name the branches of government, don’t understand the role of the courts. And we’re doing our best to try to educate the young people that come through our programs in high school and college level on those basic tenets that every American should know. I mean, I like the idea, as in some states where they require high school graduates to pass the U.S. citizenship exam to graduate, and they find that many of them can’t. Let me ask you about our program in terms of the quality of the students. We recruit from a lot of top law schools. We’ve been able to be more and more selective every year as we get more applications to our law program. For people listening who don’t know it, it’s a summer long program that includes courses on law and economics and originalism, along with a clerkship, associateship internship of some kind in the law and lots of guest lectures and other activities. We’ve been fortunate to have a lot of federal judges speak to the students. But what was your impression of the quality of the students in our program?
Judge Gregory E. Maggs [00:10:11] Well, I find the quality excellent. You know, it’s a self-selecting group. Anybody who decides they want to do a summer program studying law, they’re probably going to be pretty eager. But I’ve just never had any problem with class participation and doing the reading and also critically thinking, you know, I don’t just ask students to pair at one point of view, but often to make the counterarguments. And I found the students to be just excellent. But as you point out, you know, there are many things that would be very important for lawyers to know, but they just don’t get them in law school. So as I said, in addition to having the theoretical discussions about originalism versus other non-originalist theories, I think it’s very important to have practical examples and instructions. So we have readings about the Federalist Papers, about the notes that were taken at the Constitutional Convention, about the records of the state ratifying conventions, about the evidence that we have from dictionaries of the founding era and other sources. And students really eat this up. They’re hungry for this knowledge if they can just get it so that they can understand what it is that they’re looking at in these constitutional cases. And then one thing that I do to make it even more practical is I’ve taken a series of cases. And so we might read about, say, dictionaries from the founding era and then look at opinions which cite those. And so a good example would be the NFIB Sebelius case, that was the case that addressed the Affordable Health Care Act. And one question was whether Congress had power through the clause in the Constitution, which gives Congress the power to regulate commerce, to require people to buy insurance and can regulate mean by something. Both majority and the dissenting views cited the word regulate. And I just cut out all the other parts. And I just put the parts that had on both sides from the dictionaries. And you can really see that it’s not so indeterminate, as people might say, that in one case after another, it seems like one side has a stronger argument. I’ve done that for the Federalist Papers, from the notes from the constitutional conventions, from the records of the state, ratifying conventions, because one of the key arguments against originalism is that, well, it’s so hard to figure this out. And yet, if you cut away all the chaff and you just put the originalist arguments on both sides against each other, in many instances, it’s not so indeterminate.
Roger Ream [00:12:44] In NFIB v. Sebelius, if you somehow rejected originalism. When you come to that question of what is regulate mean, what’s the alternative method for, you know, figuring that out if it’s not to appeal to the meaning of the Constitution in that regard?
Judge Gregory E. Maggs [00:13:01] Well, you know, I’m really glad you asked that question, because that’s precisely one of the questions I would ask. The first question I asked. So there’s a disagreement between the joint dissent and also Justice Roberts view and Justice Ginsburg’s separate opinion. Justice Ginsburg never says we’re not going to decide this in an originalist manner. On the contrary, she says, we are going to decide in an originalist manner. And she says it is required. Since the beginning of time, regulate has always meant that you could direct somebody to buy health insurance. But her examples are pretty weak. You know, this is such an important case with so many eyes on it that it would probably inconceivable for somebody like Justice Ginsburg not to try to make the argument with an originalist argument. And so, you know, in this sense, we’ve moved past the 60s, the 70s and the 80s, where the Supreme Court routinely made non originalist decisions with non-originalist arguments. Now, even in a case like this, a lot of politics on both sides, it would be inconceivable that either side would not use sources of the original meaning to make their decisions in the academia. There are professors who are not convinced yet, but among judges, it’s just we’re in a new era where all courts use originalist arguments, majority courts, whether you’re in the majority of the dissent. And so you won’t find a non-originalist argument as such that we should do this because it’s good as a policy matter. Rather, it’s couched in originalist arguments, even though one side seems to be stronger than the other.
Roger Ream [00:14:32] Well, just like I’ve forgotten who said in the Nixon administration era, we’re all Keynesians now. I guess we’re all originalists now. Which is better than being all Keynesians?
Judge Gregory E. Maggs [00:14:44] And in fact, Justice Kagan said that at her confirmation hearing, she said, Well, we’re all originalists now. We’re all textualist now. And, you know, I credit all that to Justice Scalia. Justice Scalia was a very forceful advocate. You know, he was not always the most mild in his speech, but I think he really tightened things up that if there was a flawed methodology, he made it clear what the problems were and the influence that he had on the Supreme Court. And he’s no longer with us, but it’s lasted for a long time.
Roger Ream [00:15:15] Is there a difference between a textualist and an originalist? Or is it a different word for kind of the same concept?
Judge Gregory E. Maggs [00:15:22] The two are very closely related. Let me back up a little bit when we talk about original meaning. For many years, originalists have debated what the actual definition of original meaning should be. Should it be, the original intent of the framers, those who were in Philadelphia in the summer of 1787 drafting the constitution? That was Chief Justice Marshall’s view. He referred to the original intent of those who framed the Constitution. Another possibility is not the original intent of those who framed the Constitution, the people who wrote it, but instead the understanding of the people who voted to ratify the Constitution. So after the Constitution was drafted, it was presented to ratifying conventions in all the states. Then they had to decide, are we going to support this or not? And James Madison famously said, it’s really the ratifiers views that are most important. They were not part of the original discussions. At least many of them were not. Most of them were not. But what did they think they were putting into effect? Because as he pointed out, the Constitution that came out of Philadelphia was just a draft. It didn’t have force until the states had ratified it. But in more recent times, the view is that the Constitution should be interpreted according to its original public meaning, which is to say not according to the subjective intent of those who framed it or the subjective understanding of those who voted to ratify it. But just objectively, what did the text mean? And that is essentially textualism. Its textualism based not on today’s language, but instead on what did the language mean at the time of the framing. And you could still use textualism today, you know, if the statutes passed in 2023. The question is, what would the public think that that statute meant? And it’s basically we’re not going to inject policy. We’re going to read what Congress enacted.
Roger Ream [00:17:18] Yeah, that’s very clear and fascinating to have to look at the ratifying conversations in the 13 colonies, I guess, and see what people thought they were ratifying.
Judge Gregory E. Maggs [00:17:29] And, and we have notes. We have notes from almost all the conventions, not all of them, but some of them are quite extensive, like from New York and Virginia, where they discuss line by line provisions of the Constitution, and it’s pretty clear what they thought it meant. But there’s always the question of who’s meaning controls. Now, fortunately, often those meanings do not differ very much from each other, as you would expect. I mean, they wrote what they meant. They meant what they wrote, and most people understood it in the same way. But there could be theoretically a difference.
Roger Ream [00:17:58] Now, I understand you have one of our law fellows working as a clerk. That’s really exciting.
Judge Gregory E. Maggs [00:18:03] Yes, I do. I have two law clerks who help me in everything I do. We get the briefs in. They help me prepare for the oral arguments. After the oral arguments, they help me make up my mind. We get the opinions. I draft the opinions and my law clerk from TFAS is actually currently in there editing away. I’m kind of shaking, wondering how many mistakes I made, but my clerks help me a great deal. And I think that again speaks to the quality of the students that we have at TFAS. I was just really impressed with her work during the course and on her final exam. And so I made an offer to to join me. So she’ll be working. She just finished at Scalia Law School at the George Mason University and just took the bar. And she’ll be working for me for a year.
Roger Ream [00:18:50] Wonderful. That’s great. Glad to hear that. Now, you clerked, I think, for Justice Kennedy, Anthony Kennedy and Justice Clarence Thomas.
Judge Gregory E. Maggs [00:19:00] That’s correct.
Roger Ream [00:19:00] And what was that experience like for you at that time in your career?
Judge Gregory E. Maggs [00:19:05] I finished law school in 1988, and then I clerked for Judge Joseph Snead on the Ninth Circuit. And I was fortunate enough then to be picked up by Justice Kennedy. And I worked for him in 1989 and 1990. I then worked for a year for Judge Robert Bork, and then Justice Thomas was put back on the court, was put on the Supreme Court, and he wanted someone who had experience clerking because it was his first year. And so he invited me to go back. And, you know, I’ve kept in touch with both of these justices now for over 30 years. You know, when I first clerked for them, they were the two junior justices. Justice Kennedy was the junior justice when I clerked for him. And Justice Thomas was right. And, you know, there was a feeling like, well, I’m not clerking for the judges. The chief judge or somebody who’s been there a really long time. But, you know, over time, when they’re on there for 30 years, you’ve got a connection that can’t be beat. And I’d say the best thing to do is to clerked for a junior justice. And I’ve it’s been a great relationship that I’ve had with both of them.
Roger Ream [00:20:06] That’s wonderful. And you know, I mentioned in my introduction and you mentioned as well your many years in the JAG Corp. And I imagine some people listening might not know what that involves. Could you talk about what the JAG Corp does and your experience there?
Judge Gregory E. Maggs [00:20:22] Well, let me just tell you a little story about how I got into the JAG Corps. I was a law clerk, as I mentioned, on the US Court of Appeals for the Ninth Circuit, and we had a case involving veterans benefits. And it turned out that all three of the judges on the Ninth Circuit panel that heard the case, had been in the Army, as had the counsel for both the government and the plaintiff. And of course, the plaintiff had been in as well. And I can’t remember the exact issue about these benefits, but the judges were saying, “no, I got out in 45 and what was my status?” And you know, “I served in Korea, what was my status.” And I thought, “what am I doing?” I haven’t served in the Army and everybody else has. So I went back to my office. And back then we had a typewriter and a piece of paper, and I stuck in a piece of paper and I sent it off to an army recruiting office. And I joined up and I, you know, I was in there for over 28 years afterwards. You make a snap decision and sometimes it pays off. But essentially, right from the very beginning, lawyers have played a key role in everything that the Army does. The U.S. Army was created on June 14th, 1775. The Continental Congress decided to create two companies of riflemen. This was right after Lexington, Concord and on that same day, they selected General Washington and John Adams to serve on a committee to create rules and regulations for the governments of the army. It was only a short time later, on June 29, 1775, that the first JAG officer was selected. He selected a very distinguished Harvard Law School graduate. He picked a young man named John Marshall to be the deputy judge advocate. And I often asked my students, why was it so important to both have a military justice system and to immediately have the very best people. People like John Marshall involved. John Marshall’s tent mate was James Monroe. And the answer is that George Washington gave us without good order and discipline, you don’t have an army. You just have a rattle. You need a justice system. Take a look at the Afghan army. On paper, they had 80,000 active-duty soldiers. They folded in two days. Where were those people? What were the consequences if you just walked away? Somebody probably just stole your pay. That was probably all that happened. You need a justice system and you need it to be dependable, but also fair. And so throughout the history, JAG officers, judge advocate generals as the using historic British name, have played a role in ensuring that commanders can try people accused of crimes, whether it’s desertion or disrespect to officers or something more serious like murder or anything else.
Roger Ream [00:23:13] One question I was going to kind of close our discussion with at some point here was what advice you would give to law students who want to pursue careers in the law. I think one thing you might say is consider the Judge Advocate Corps.
Judge Gregory E. Maggs [00:23:25] I would definitely say that I’ve been very involved in helping persuade law students and also my clerks and others to join the JAG Corps. You know, the typical commitment is four years and I have counseled lots and lots of people 10-15 a year to go into JAG Corp. Some stay in for four years, some make it a career and stay in 20 years. Some say after four years, “I’m glad I did it. I’m glad I done. I want to do something else.” Others say, “I want to do this forever.” I’ve never heard anybody say it was a mistake. The experience you get, the idea that you have a bigger mission. The idea that you’re using your legal training for a greater purpose. It’s a good career starter, and I think it’s very well respected in firms and in the government as well.
Roger Ream [00:24:10] Did any of your colleagues on the court for the Armed Forces serve in the military?
Judge Gregory E. Maggs [00:24:16] Yeah. Currently, four out of five of my colleagues have served. Our chief judge, Chief Judge Olson, joined right after graduation and he served in the Gulf War. He got out and then had a civilian career, including high levels in the Justice Department. Judge John Sparks. Well, he did the whole thing. He enlisted in the Marine Corps. He then went to the Naval Academy. He was then a marine judge, advocate for 20 years till he retired. Judge Tia Johnson was a judge advocate for over 20 years, retired as a colonel in the Army. Judge Hardy was not in the military but has a great respect for the military and actually had served one time as a law clerk on our court. We are a civilian court. We’re not supposed to be an extension of the military. I think most of us have military experience just because we are more interested in military justice than others would be. And that’s why we got on this Corp.
Roger Ream [00:25:10] Well, I appreciate very much you joining me today. It’s been interesting conversation. We’re thrilled that you are teaching a course on the Constitution to our law fellows in the summer. They’re blessed to have you in the classroom. I feel like I need to free you to go check on your clerk who’s editing your opinion.
Judge Gregory E. Maggs [00:25:32] I’m a little worried about that. I tell them, “Don’t hold back. I don’t care if I look like an idiot in chambers. We just have to make it look right before it goes out the door.” Thank you very much for having me. It’s been a pleasure.
Roger Ream [00:25:45] Thank you for listening to the Liberty + Leadership Podcast. If you have a comment or question, please drop us an email at podcast@TFAS.org and be sure to subscribe to the show on your favorite podcast app. And leave a five-star review. Liberty + Leadership is produced at Podville Media. I’m your host, Roger Ream. And until next time, show courage in things large and small.
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