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The Inconsistency of the Majority Justices With Their Previously Expressed Views

Alan M. Dershowitz

in Supreme Injustice: How the High Court Hijacked Election 2000

Aims to demonstrate that, during the (Bush vs Gore) US presidential election of 2000, by any reasonable standard of evaluation, the majority justices of the US Supreme Court failed to test the US ... More

Aims to demonstrate that, during the (Bush vs Gore) US presidential election of 2000, by any reasonable standard of evaluation, the majority justices of the US Supreme Court failed to test the US constitutional system in ways that it had never been tested before, and did so not because of incompetence, but because of malice aforethought. Contrasts the prior decisions and writings of the particular majority justices with the opinions that they joined in this case; the dramatic discrepancies found raise troubling questions. Moves from this concrete evidence to a more speculative consideration of what may have motivated these inconsistencies. The different sections of the chapter look first at the decisions of Justice Antonin Scalia, Justice Sandra Day O’Connor, Justice Anthony Kennedy, Chief Justice William H. Rehnquist, and Justice Clarence Thomas. The following speculative sections first ask generally why each justice behaved as they did, and then go on to devote separate sections on the motives of each of the five justices.Less

Scalia, the Environment, and the Modern Standing Doctrine

Evan Tsen Lee

in Judicial Restraint in America: How the Ageless Wisdom of the Federal Courts was Invented

This chapter focuses on Antonin Scalia. In 1983, as a young judge on the D.C. Circuit, Scalia published a law review article called “The Doctrine of Standing as an Essential Element of the Separation ... More

This chapter focuses on Antonin Scalia. In 1983, as a young judge on the D.C. Circuit, Scalia published a law review article called “The Doctrine of Standing as an Essential Element of the Separation of Powers.” In it, he laid bare many of his beliefs about the relationship among the three branches of the federal government. Scalia's theory of standing doctrine—as protection against courts telling majorities how best to pursue their own interests—resonated the most deeply in the environmental cases, where it was obvious that all citizens were similarly vulnerable.Less

Implementation

Jeffrey Brand-Ballard

in Limits of Legality: The Ethics of Lawless Judging

This chapter addresses two basic questions about implementing selective optimization: (1) to what extent should judges disclose or conceal the fact that they selectively optimize, and (2) are judges ... More

This chapter addresses two basic questions about implementing selective optimization: (1) to what extent should judges disclose or conceal the fact that they selectively optimize, and (2) are judges psychologically capable of internalizing selective optimization? It considers some familiar sexual orientation cases decided by the U.S. Supreme Court, including Lawrence v. Texas and Romer v. Evans. It is argued that some of Justice Antonin Scalia’s dissenting arguments demand a response and that selective optimization offers one. The chapter argues that although judges have a pro tanto duty of candor, this duty is often overridden in suboptimal-result cases. It is sometimes permissible, therefore, for judges to advance fallacious legal arguments without admitting it—for them to deviate surreptitiously. Some implications of selective optimization for the treatment of precedent are explored, as is the relationship between selective optimization and Cass Sunstein’s judicial minimalism. Finally, recognizing that consciously obeying selective optimization may be psychologically impossible for some judges, the chapter considers the possibility of unreflective judicial conformity to selective optimization.Less

The common law system in America

F. A. R. Bennion

in Understanding Common Law Legislation: Drafting and Interpretation

The common law world has one system of statutory interpretation, though some in the United States think constitutional enactments should be construed differently. A written constitution is incomplete ... More

The common law world has one system of statutory interpretation, though some in the United States think constitutional enactments should be construed differently. A written constitution is incomplete unless it contains instructions on how it is intended by the framers to be interpreted and applied. Professor Mary Ann Glendon said that though more than a century has passed since legislative enactments displaced case law as the starting point for legal reasoning, United States lawyers still operate with obsolete craft habits. In the United States, textualists differ from those who believe in the living constitution. The textualist Justice Scalia denies judges authority to pursue broader purposes or write new laws, while stressing that textualism does not mean blind adherence to literalism. He believes proper statutory interpretation has been undermined by using legislative history. Justice Scalia triumphed when the Supreme Court followed the letter of the law in the 2000 presidential election.Less

Locke and Loyalty in Contemporary Political Theology: Three Ways of Making the Turn

John Perry

in The Pretenses of Loyalty: Locke, Liberal Theory, and American Political Theology

This chapter examines three current proposals for making the turn to loyalty, that is, three strategies for reestablishing a vision of toleration that has become detached from its theological ... More

This chapter examines three current proposals for making the turn to loyalty, that is, three strategies for reestablishing a vision of toleration that has become detached from its theological underpinnings. Reconciling loyalty through cultural republicanism is advocated by Catholic neoconservatives Richard John Neuhaus and Michael Novak. Nicholas Wolterstorff and John Witte (informed by neo-Calvinist or Reformed theology) pursue loyalty through ordered pluralism. Finally, Martha Nussbaum, a Reform Jew, advocates loyalty through fidelity to conscience.Less

The Constitutive and Evidential Aspects of Ordinary Meaning

Brian G. Slocum

in Ordinary Meaning: A Theory of the Most Fundamental Principle of Legal Interpretation

Chapter Three develops a theory of ordinary meaning and focuses on the tension between the inherent requirement of ordinary meaning that it be generalizable across contexts and the reality that ... More

Chapter Three develops a theory of ordinary meaning and focuses on the tension between the inherent requirement of ordinary meaning that it be generalizable across contexts and the reality that meaning is inherently contextual. One motivation for conceiving of ordinary meaning as generalizable across contexts is to maintain a gap between ordinary meaning and communicative meaning. The chapter outlines the justifications for the ordinary meaning doctrine in order to explain why both communicative meaning and ordinary meaning should be aspects of legal interpretation. These justifications range from notice to the justificatory nature of legal interpretation. The chapter also discusses the constitutive question of what makes some meaning the ordinary meaning of a text, as well as how the objective ordinary meaning interpreter might be defined. In evaluating ordinary meaning it is useful to consider Scalia & Garner’s (Scalia & Garner, 2012: 69) view that “most interpretive questions have a right answer”, and “[v]ariability in interpretation is a distemper”. Scalia & Garner’s argument is true only if the determinants of ordinary meaning are determinate in a way that does not allow for interpretive discretion. Any coherent and accurate way of framing ordinary meaning cannot, however, eliminate interpretive discretion.Less

Textualism and the Discovery of Rights 1

John Perry

in Philosophical Foundations of Language in the Law

This chapter argues that we need to distinguish meaning-textualism from conception-textualism. The former is the view that in interpreting the constitution and other statutes, the starting point is ... More

This chapter argues that we need to distinguish meaning-textualism from conception-textualism. The former is the view that in interpreting the constitution and other statutes, the starting point is the meaning the words and phrases used in the text had at the time the text was written. The latter is the view that the starting point is the conceptions the writers and intended readers of the text had. It is argued that the former is a plausible approach to interpretation, the latter being confused and hopeless. Meaning-textualism leaves open several possibilities for the establishment or discovery of new rights, contrary to what some proponents of textualism have stated. The chapter illustrates the differences by examining the text of the eighth amendment, prohibiting cruel and unusual punishments, which, it argues, has been weakened to the point of irrelevance by confused thinking of matters of interpretation.Less

Literal Meaning, the Dictionary and the Law

Christopher Hutton

in Language, Meaning and the Law

This chapter looks more closely at some issues and trends in legal interpretation and legal decision making, against a background of debates in the United States in particular between originalism, ... More

This chapter looks more closely at some issues and trends in legal interpretation and legal decision making, against a background of debates in the United States in particular between originalism, textualism (Scalia) and the idea of living constitution. Both law and linguistics deploy the idea of literal meaning, but it is hard to find a convincing account of this problem. Courts use dictionaries to help with problems of interpretation but their approach is open to the charge of inconsistency. Linguists offer their own approaches to help in the identification of legally relevant meaning, but these are also problematic. Judges employ dictionaries because they offer an apparently objective framework, without any reference to the actual facts of the case.Less

Aspect-Blindness in Religion, Philosophy, and Law: The Force of Wittgensteinian Reading

Christopher C Robinson

in Wittgenstein and Political Theory: The View from Somewhere

Aspect-blindness is a condition that Wittgenstein posits in order to create a contrast to the experience of changes in aspect. This chapter examines the relationship between language-games and ... More

Aspect-blindness is a condition that Wittgenstein posits in order to create a contrast to the experience of changes in aspect. This chapter examines the relationship between language-games and aspect-blindness. Can some language-games be so rigid they curtail linguistic creativity extensively enough to induce aspect/meaning blindness, and vice versa? Does the experience of aspect-blindness give an intimate view of the effect of ideology on perception? This chapter defines ideology in Marxian terms as a super-structural or cultural effect that masks reality and directs vision away from the social sources of pain and leaves the sufferer, a person or a class, with no recourse other than seeking relief in religion or stoicism. This chapter also examines Plato's early dialogue, ‘Euthyphro’, and Antonin Scalia's opinion in the case of Michael H. v. Gerald D.Less

The Formalist Crusade of Antonin Scalia

in Desperately Seeking Certainty: The Misguided Quest for Constitutional Foundations

This chapter describes Antonin Scalia's orginalism, which is distinctive in several respects and is more concerned with restricting judicial lawmaking than with the value of popular sovereignty. It ... More

This chapter describes Antonin Scalia's orginalism, which is distinctive in several respects and is more concerned with restricting judicial lawmaking than with the value of popular sovereignty. It is not believed that Scalia has successfully resolved the internal tensions in his thinking. His recent theoretical writings seem to have reverted to a more simplistic version of originalism. His best-known opinion on the separation of powers is his dissent in a case concerning the constitutional status of the independent counsel. Originalism plays a limited role in some of Justice Scalia's most notable opinions despite its centrality in his thinking about judicial review. Hence, despite his views on originalism, he has tended in practice to invoke entrenched interpretations of constitutional provisions by either the Court itself or by long-standing public consensus.Less

Information-Rich Jurisprudence

Brian E. Butler

in The Democratic Constitution: Experimentalism and Interpretation

This chapter outlines three possible ways to characterize the manner in which constitutional jurisprudence deals with information. First, there are strategies that try to exclude as much information ... More

This chapter outlines three possible ways to characterize the manner in which constitutional jurisprudence deals with information. First, there are strategies that try to exclude as much information as possible. Information excluding strategies are ubiquitous in legal thought and practice. Here Justice Antonin Scalia’s public meaning originalism is taken as a prime example of this strategy. Another strategy is to include as much information as available. Recently this strategy has been exemplified in Richard Posner’s work on judging. Therein he labels the most honest and effective judge a “constrained pragmatist.” Finally, there is the possibility that courts could be set up to actually help produce relevant information. It is argued that the jurisprudence of democratic experimentalism exemplifies this strategy. Using Scalia’s information excluding opinion in the gun-rights case District of Columbia v. Heller, and Posner’s information including Second Amendment opinion, Baskin v. Bogan, it is argued that information-rich jurisprudence offers a much more effective and sensitive jurisprudential strategy in constitutional interpretation.Less

Epstein, Holmes, and Regulatory Takings Jurisprudence

Brian E. Butler

in The Democratic Constitution: Experimentalism and Interpretation

Chapter 4 investigates the issue of “regulatory takings” through an investigation of Oliver Wendell Holmes’ foundational case, Pennsylvania Coal Co. v. Mahon, Antonin Scalia’s Lucas v. South Carolina ... More

Chapter 4 investigates the issue of “regulatory takings” through an investigation of Oliver Wendell Holmes’ foundational case, Pennsylvania Coal Co. v. Mahon, Antonin Scalia’s Lucas v. South Carolina Coastal Council and the takings theory of Richard Epstein. Epstein’s theory, a key theory for the modern resurrection of takings jurisprudence, is outlined and utilized as an example of formalist and deductivist legal reasoning. Epstein emphasizes the importance of bright-line rules and critiques Holmes’ Mahon “matter of degree” style of reasoning as incoherent and theoretically weak. As opposed to this, the argument offered in the chapter critiques Epstein’s assumptions, showing them to be empirically and formally weak. Indeed, his argument is only as strong as every link in his argument, and many of the links are controversial and easy to dispute. In contrast, the basic reasoning shown in Holmes’ opinion exemplifies a stronger braided style of argument as Peirce advocated for.Less

Reading with Guns: District of Columbia v. Heller

John Frow

in On Interpretive Conflict

This chapter explores a 2008 US Supreme Court case that brings into play two starkly contrasted readings of the Second Amendment to the US Constitution: a textualist or “originalist” reading written ... More

This chapter explores a 2008 US Supreme Court case that brings into play two starkly contrasted readings of the Second Amendment to the US Constitution: a textualist or “originalist” reading written for the majority by Justice Antonin Scalia, and a “contextualist” reading written by two of the dissenting justices. The Court’s discovery of a previously unarticulated constitutional right (the right of private citizens to carry guns for self-defense) is firmly rooted in the libertarian principles of the US gun lobby. Yet its judgment in this case is made as though it were entirely free of any such context: the Court endows the text of the Constitution with an absolute authority and envisages its own decision-making processes as taking place within an apparently timeless and transcendental institution. That interpretive institution is, however, neither timeless nor transcendental but rather a field of self-reinforcing authority that enables and contains dissenting views and is composed of quite heterogeneous materials: a multiplicity of legal domains, a network of material and immaterial orderings, disparate forms of discourse, and the pre-judgments and tacit understandings that underpin them.Less

Conclusion

Ilya Somin

in The Grasping Hand: 'Kelo v. City of New London' and the Limits of Eminent Domain

The Conclusion summarizes events in New London since the Court’s decision, recapitulates some key lessons of the book, and discusses the future of public use. Nine years after the Kelo decision, the ... More

The Conclusion summarizes events in New London since the Court’s decision, recapitulates some key lessons of the book, and discusses the future of public use. Nine years after the Kelo decision, the condemned property still lies empty. But the controversy sparked by the Kelo takings has led to real progress for property rights. In addition to stimulating effective reforms in some states, it has undermined the seeming consensus in favor of a very broad definition of public use. The controversial and the closely divided nature of the decision also make it more likely that Kelo will ultimately be overruled or limited by the Court, a result that would be consistent with the Court’s current doctrine on how to determine whether a precedent should be reversed. Like previous reform efforts, the Kelo story demonstrates that efforts to strengthen protection for constitutional rights are most likely to succeed if they combine legal and political action rather than focus on one approach exclusively.Less

Gerald R. Ford

Steven G. Calabresi and Christopher S. Yoo

in The Unitary Executive: Presidential Power from Washington to Bush

This chapter illustrates the difficulty Gerald R. Ford faced in defending the prerogatives of the executive branch, given that Watergate had effectively destroyed public confidence in the presidency. ... More

This chapter illustrates the difficulty Gerald R. Ford faced in defending the prerogatives of the executive branch, given that Watergate had effectively destroyed public confidence in the presidency. Ford also lacked the mandate and the broad base of political support needed for vigorous presidential action. Instead of acquiescing in congressionally imposed invasions on the unitariness of the executive branch, however, Ford held firm and defended the unitariness of the executive with the aid of his assistant attorney general for the Office of Legal Counsel, Antonin Scalia. The first two major issues of the Ford presidency emerged one month into his administration, when he pardoned both former president Richard M. Nixon and many individuals who had evaded the draft during the Vietnam War.Less

Conclusion

Ilya Somin

in The Grasping Hand: "Kelo v. City of New London" and the Limits of Eminent Domain

The Conclusion summarizes events in New London since the Court’s decision, recapitulates some key lessons of the book, and discusses the future of public use. Nine years after the Kelo decision, the ... More

The Conclusion summarizes events in New London since the Court’s decision, recapitulates some key lessons of the book, and discusses the future of public use. Nine years after the Kelo decision, the condemned property still lies empty. But the controversy sparked by the Kelo takings has led to real progress for property rights. In addition to stimulating effective reforms in some states, it has undermined the seeming consensus in favor of a very broad definition of public use. The controversial and the closely divided nature of the decision also make it more likely that Kelo will ultimately be overruled or limited by the Court, a result that would be consistent with the Court’s current doctrine on how to determine whether a precedent should be reversed. Like previous reform efforts, the Kelo story demonstrates that efforts to strengthen protection for constitutional rights are most likely to succeed if they combine legal and political action rather than focus on one approach exclusively.Less

Scalia as Procrustes for the Majority, Scalia as Cassandra in Dissent

Mary Anne Case

in Justice Scalia: Rhetoric and the Rule of Law

Using Greek myth to illuminate some of the late Justice Scalia's rhetorical moves, this chapter argues that as an author of majority opinions, Scalia was often Procrustes, leaving no case behind but ... More

Using Greek myth to illuminate some of the late Justice Scalia's rhetorical moves, this chapter argues that as an author of majority opinions, Scalia was often Procrustes, leaving no case behind but forcing all prior doctrine into the shape he needed for the new law of rules he was announcing. In dissent, by contrast, Scalia could be Cassandra: describing what for him are the drastic consequences he foresees from the majority’s logic, he often paints a prophetic picture which in time comes true, perhaps in part because of, rather than in spite of, his horrified articulation of an opinion’s implications. While the progression of gay rights cases from Romer through Obergefell is the clearest and most sustained example of Scalia as Cassandra, his procrustean majority opinions include Employment Division v. Smith. For each of these cases, the chapter examines the structure and unintended consequences of Scalia's approach.Less