The Scalia Problem: It Wasn’t Originalism or Textualism -- It Was Trumpism
THREAD /1
prospect.org/justice/scalia…
THREAD /1
prospect.org/justice/scalia…
Scalia’s Trumpism /2
Scalia never consistently owned up to which of the very different versions of his interpretive lodestars he subscribed.
Scalia never consistently owned up to which of the very different versions of his interpretive lodestars he subscribed.
Scalia’s Trumpism /3
Notoriously, he picked and chose among competing theories, and, indeed, ignored or violated outright his basic originalist/textualist canon when convenient for justifying desirable—usually conservative—results.
Notoriously, he picked and chose among competing theories, and, indeed, ignored or violated outright his basic originalist/textualist canon when convenient for justifying desirable—usually conservative—results.
Scalia’s Trumpism /4
The real challenge is to understand why Scalia's catechism has won the broad influence it has had, both in legal circles and especially in politics.
The real challenge is to understand why Scalia's catechism has won the broad influence it has had, both in legal circles and especially in politics.
Scalia’s Trumpism /5
Scalia often insisted that the 14th Amdmt’s guarantee of “equal protection of the laws” outlawed only discrimination based on race, but not gender, let alone sexual orientation.
Scalia often insisted that the 14th Amdmt’s guarantee of “equal protection of the laws” outlawed only discrimination based on race, but not gender, let alone sexual orientation.
Scalia’s Trumpism /6
He bypassed the expansive constitutional text on the grounds that its framers were actually preoccupied with eliminating only state-sponsored racial discrimination against African American former slaves.
He bypassed the expansive constitutional text on the grounds that its framers were actually preoccupied with eliminating only state-sponsored racial discrimination against African American former slaves.
Scalia’s Trumpism /7
..when the constitutionality of affirmative action came up, Scalia executed a 180. He ignored..the overwhelming evidence that such an actual-intent approach would validate affirmative action measures benefiting racial minorities..”
..when the constitutionality of affirmative action came up, Scalia executed a 180. He ignored..the overwhelming evidence that such an actual-intent approach would validate affirmative action measures benefiting racial minorities..”
Scalia’s Trumpism /8
..the same Congress that passed the 14th Amendment also enacted express racial preferences to help former slaves adjust to their new freedom..
..the same Congress that passed the 14th Amendment also enacted express racial preferences to help former slaves adjust to their new freedom..
Scalia’s Trumpism /9
“The gap between Scalia's stated approach & his practice in deciding real cases,” [Prof] Hasen writes, revealed not so much the justice's own faults as “the difficulty of using [such methodological approaches] to limit judicial discretion.”
“The gap between Scalia's stated approach & his practice in deciding real cases,” [Prof] Hasen writes, revealed not so much the justice's own faults as “the difficulty of using [such methodological approaches] to limit judicial discretion.”
Scalia’s Trumpism /10
“The notion,” he adds, “that judges can use originalist [or textualist] methods to ‘find' or ‘discover' the law rather than make it, has proven to be an illusion.”
“The notion,” he adds, “that judges can use originalist [or textualist] methods to ‘find' or ‘discover' the law rather than make it, has proven to be an illusion.”
Scalia’s Trumpism /11
Scalia's most distinctive legacy could be as prophet&founding father of new right's divisive,no-sacred-boundaries brand of politics,flaunting “constitutionalist”self-labeling while embracing the judiciary as an essential arm of the right’s political agenda.
Scalia's most distinctive legacy could be as prophet&founding father of new right's divisive,no-sacred-boundaries brand of politics,flaunting “constitutionalist”self-labeling while embracing the judiciary as an essential arm of the right’s political agenda.
Scalia’s Trumpism /12
In response, progressives should downplay sparring over abstract methodologies, and instead trumpet the often compelling case that justice and the law, as written and originally understood, are on the progressive side.
In response, progressives should downplay sparring over abstract methodologies, and instead trumpet the often compelling case that justice and the law, as written and originally understood, are on the progressive side.
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