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May 23, 2011

Has Justice Scalia started drinking Justice Breyer's "Active Liberty" Kool-Aid? Really?!?!

Snl_reallyThough the line has already been noted by Grits in a prior comment, I cannot help but blog more about one key sentence at the start of Justice Scalia's dissent in the Plata SCOTUS case handed down today.  As he revs up his attack rhetoric, Justice Scalia asserts: "There comes before us, now and then, a case whose proper outcome is so clearly indicated by tradition and common sense, that its decision ought to shape the law, rather than vice versa." 

Huh?  Or to paraphrase Seth Myers et al., Really!?! Justice Scalia!?!  Really!?!

Perhaps others can help me understand how this line about tradition and common sense shaping the law conforms to Justice Scalia's usual textualist philosophy; to me, this approach to jurisprudence sounds a lot more like what we usually expect to hear from Justice Breyer.  Indeed, throughout Justice Breyer's book "Active Liberty" one can readily find frequent references to tradition and common sense to justify Justice Breyer's dynamic approach to constitutional and statutory interpretation.  Indeed, Justice Breyer has often stressed tradition and common sense to complain about Justice Scalia's work in landmark cases like Heller and Blakely. 

So, Justice Scalia, is the mere prospect of a federal court ordering a state to release its least dangerous offenders in the face of extreme and long-standing overcrowding all it takes to prompt you to give up a career commitment to textualism?  Really!?! Justice Scalia!?!  Really!?!

Today's main posts on the Plata ruling:

May 23, 2011 at 02:22 PM | Permalink


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Is it a possibility that Scalia was trying to court Breyer's vote? Maybe Breyer was on the fence about how to vote and waited until he read the various opinions to decide? Or, on the other hand, maybe Scalia was just trying (pejoratively?) to throw the concept in Breyer's face?

Posted by: DEJ | May 23, 2011 2:40:18 PM

I agree, Doug. Amazing that Scalia just comes right out and admits that he was completely result-oriented in this case.

Posted by: F.3d | May 23, 2011 3:17:45 PM

I don't think it can seriously be claimed that Scalia actually believes in textualism. He strays from that reservation pretty much whenever it suits him. I'm more surprised that Thomas joined that particular language.

Posted by: Soronel Haetir | May 23, 2011 3:42:53 PM

I agree too. It's rare that you see such a candid admission of result-oriented judging right up front.

Posted by: Def. Atty. | May 24, 2011 11:14:50 AM

I was surprised to see that language as well. Although I don't believe his use of the word "absurd" a sentence or two later was an accident. Even when it comes to statutory construction, even fairly committed textualists -- everyone but the absolutists -- leave room for the "except when the result would be absurd" escape hatch to the usual rule that statutes are to be enforced as written, with the only reliable barometer of legislative intent being the words of the statute the legislature enacted. (I recognize, of course, that the criticism is that "demonstrable absurdity can be in the eye of the beholder" and that the escape hatch can be used simply as an excuse to depart from one's usual principles on the basis that following one's principles to their logical conclusion would produce an "absurd" result. Still, I don't think most people would like to see complete absolutism -- regardless of results -- in practice. Maybe the fairest measuring stick should be how often one resorts to use of the emergency escape hatches.)

Posted by: guest | May 24, 2011 2:46:17 PM

guest says, "Maybe the fairest measuring stick should be how often one resorts to use of the emergency escape hatches"

Or perhaps not "how often one resorts to the use" of such an "escape hatch" but the extent to which its use corresponds only to cases where following the law would violate one's personal political ideology.

I've seen judges issue rulings enforcing policy views they disagree with personally based on generating "absurd" results - I can think of two recent ones offhand from the conservative Texas Court of Criminal Appeals, producing pro-defendant rulings to avoid "absurd" outcomes. But that's different than when the ONLY time a judge resorts to that meme is when ruling otherwise would conflict with their personal politics, as is the case with Scalia and Thomas. Even if it's "rare," that's just a little too convenient.

Posted by: Gritsforbreakfast | May 24, 2011 3:54:39 PM

@ Grits:

"Or perhaps not 'how often one resorts to the use' of such an 'escape hatch' but the extent to which its use corresponds only to cases where following the law would violate one's personal political ideology."

That seems like a generally fair addition/corollary to my proposed rule; if a judge finds "absurdity" or another escape hatch only when the results would run in one direction it raises questions (although it might not answer all of them).

I think there are certainly cases, e.g., Thompson v. NA Stainless (authored by Justice Scalia this Term) in which the result isn't explained by Justice Scalia's presumed policy views of how the world ought to work but only by his view of "well, whatever we think the best policy might be, Congress writes the statutes and the statute in this case says what it says." I know that there are many more such cases, but I was just thinking of opinions he'd written for the Court this Term (as opposed to those in which he filed a concurring opinion or concurred without filing a separate opinion).

Posted by: guest | May 24, 2011 4:13:13 PM

It's odd language for him, but is his reading of the statute, textually, all that unconvincing? I'm not sure that it is.

Posted by: Asher | May 24, 2011 5:24:35 PM

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