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June 19, 2006

Calling the (passive) spirit of Alexander Bickel

Today's intriguing little SCOTUS per curiam, along with the dissents from Justices Scalia and Kennedy, in Youngblood v. West Virginia (available here) suggests yet again that the most interesting aspect of the early Roberts Court is how it is deciding matters, rather than what it is deciding. 

The many narrow opinions and the slow pace of cert grants has led me to believe that the Roberts Court was eager to effectuate the "passive virtues" famously championed by Alexander Bickel.  But as Justice Scalia highlights in his Youngblood dissent, the Court's GVR in Youngblood does not seem so passive.  And yet, both CJ Roberts and Justice Alito (a purported Bickel fan) are the key swing votes forming a majority for the GVR. 

Very interesting . . . and more good news for law professors looking for interesting (ivory tower) SCOTUS topics for law journal discussion.

June 19, 2006 at 11:14 PM | Permalink


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