Textualism and the Courts

April 26, 2018

Textualism and the Courts (A Wee Bit Wonky)*


Justice Antonin Scalia, Textualist

The Book

I finished The Justice of Contradictions: Antonin Scalia and the Politics of Disruption by Richard Hasen recently. Dealing with complex matters, Mr. Hasen offers lucid analysis and a fine read!

Straightaway, Mr. Hasen tells readers he has not written a Scalia biography, or a “comprehensive examination of all of [Justice] Scalia’s opinions and ideas.” Instead, he promises “an examination of [Justice Scalia’s] jurisprudential theories of textualism and originalism, his inimitable and caustic tone in dealing with his adversaries on and off the Court, and his key areas of modern American law.” And he delivers, in plain English!

I’m focused here on textualism, the legal

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Roger Ailes, Dead – Some Thoughts!

May 18, 2017

Roger Ailes, Dead – Some Thoughts!

roger ailes

Roger Ailes

For those of us who communicate in the public sphere about this and that, the passing of a person of less than sterling character presents many challenges. Deeply held beliefs about basic decency bump up against the need to be candid about a life lived poorly, especially when the decedent harmed many among us.

The passing of Justice Antonin Scalia brought those challenges into focus. On February 14, 2016, less than a day after Justice Scalia died, I posted Scalia – Thoughts about First Reactions!, in which I focused on the very issue mentioned in the preceding paragraph. (I found some comments about Justice Scalia truly offensive.) Four days later,

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Justice Antonin Scalia, Three Weeks Later

March 4, 2016

I wrote Justice Antonin Scalia on February 18, and thought I’d said pretty much everything I had to say. Alas, not!

Justice Scalia died on February 13, only three weeks ago. What has me writing again is the evident impact his death has had on the U.S. Supreme Court and the country. No observant person ever doubted the fact that Justice Scalia was a force on the Court. I suspect, though, that even the sharpest observers are, like me (who is not a part of that cohort), goggle-eyed about how much has changed in 21 days. For proof, read The Supreme Court’s New Era by Linda Greenhouse—is a part of the sharpest observer cohort, and should maybe be its honorary

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Justice Antonin Scalia

February 18, 2016

At Monday’s Philosopher’s Guild meeting, RF posed the question: Can a person be good and still take pleasure in someone’s having passed? I said yes, at least with respect to a public person. I mourn the loss of life and feel sad for family and friends. Soon after, the public persona takes over. With an appropriate amount of respect, the person becomes fair game.

So, history will judge Antonin Scalia, and the verdict will likely be mixed, and will come after a long while. For me, though, three negative attributes stand out. They are: (1) The originalism conceit; (2) An abysmal lack of judicial demeanor; and (3) A lack of evident empathy. (For an insider’s take, read after I wrote

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Scalia – Thoughts about First Reactions!

February 14, 2016

Josh Marshall, the founder / publisher of TalkingPointsMemo.com shared Thoughts on Justice Scalia’s Passing on Saturday afternoon. Here’s his opening paragraph:

Let us first recognize the unexpected death of Justice Antonin Scalia, a 79 year old man with a large family and almost countless admirers, friends and protégés. I think he had precious few supporters or ideological admirers among our core readers. But this is a man who served on the High Court for almost thirty years and unquestionably, for better or worse, will go down as one of the most influential Justices of the last half century. … Our ideological and partisan commitments should never be so all-encompassing that we cannot step aside from them to recognize realities that

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The U.S. Supreme Court, 2015-16 Term

October 4, 2015

First Monday in October is upon us. Tomorrow, the U. S. Supreme Court begins its 2015-16 Term. Here at Mark Rubin Writes we will follow the Court once again, relying heavily on SCOTUSblog.com and many other resources.

Adam Liptak’s Supreme Court Prepares to Take on Politically Charged Cases for the New York Times, today, provides an excellent overview of the coming Term. I noted in particular his three paragraphs about partisanship, relying on Neal Devins, a law professor at William & Mary. Here they are:

‘This coming term will again put into focus that the court is divided along partisan lines and that the 2016 presidential elections will be hugely consequential in shaping constitutional and other law for perhaps

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Writing Matters … Mostly!

March 5, 2015

When I was a young man I recall some discussion—today it would be Internet buzz—about how writing didn’t matter anymore. We all talked to one another, and that made writing unnecessary.

Wrong! Writing matters greatly, almost always. Very recently, I got a decision in a case. My clients were right on both the facts and the law; however, the case was complicated. I filed a motion for summary judgment. It’s a request to the court, asking the court to accept the other side’s version of the facts and still rule in your side’s favor, on account of the law being on your side.

My clients prevailed. The right decision, although I was concerned until I got the ruling, as I’m

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