Open Access. Powered by Scholars. Published by Universities.®
Articles 1 - 4 of 4
Full-Text Articles in Law
The Problem Of Extravagant Inferences, Cass Sunstein
The Problem Of Extravagant Inferences, Cass Sunstein
Georgia Law Review
Judges and lawyers sometimes act as if a constitutional or statutory term must, as a matter of semantics, be understood to have a particular meaning, when it could easily be understood to have another meaning, or several other meanings. When judges and lawyers act as if a legal term has a unique semantic meaning, even though it does not, they should be seen to be drawing extravagant inferences. Some constitutional provisions are treated this way; consider the idea that the vesting of executive power in a President of the United States necessarily includes the power to remove, at will, a …
Textualism Today: Scalia’S Legacy And His Lasting Philosophy, Chase Wathen
Textualism Today: Scalia’S Legacy And His Lasting Philosophy, Chase Wathen
University of Miami Law Review
Appointed to the Supreme Court in 1986 by President Reagan, Justice Antonin Scalia redefined the philosophy of textualism. Although methods like the plain meaning rule had been around for over a century, the textualist philosophy of today was not mainstream. While Scalia’s textualism is thought to be a conservative philosophy, Scalia consistently maintained that it was judicial restraint rather than conservatism at the heart of his method. The key tenant of Scalia’s new textualism was an outright rejection of legislative history, which he often brought up in opinions only to mock and dismiss as irrelevant. Starting with the hypothesis that …
What Members Of Congress Say About The Supreme Court And Why It Matters, Carolyn Shapiro
What Members Of Congress Say About The Supreme Court And Why It Matters, Carolyn Shapiro
Chicago-Kent Law Review
Republican and Democratic senators took strikingly different approaches to Justice Neil Gorsuch’s confirmation hearing. Republicans focused on judicial process—what judges are supposed to do, how they are constrained, and the significance of the constitutional separation of powers—evoking rhetoric long used by the political right. Democrats, by contrast, focused primarily on case outcomes, complaining, for example, that Gorsuch favored “the big guy” over “the little guy” in cases he decided as a judge on the Tenth Circuit. This Article critiques the Democrats’ failure to discuss judicial process and to promote their own affirmative vision of the judiciary and the Constitution. A …
Claiming Neutrality And Confessing Subjectivity In Supreme Court Confirmation Hearings, Carolyn Shapiro
Claiming Neutrality And Confessing Subjectivity In Supreme Court Confirmation Hearings, Carolyn Shapiro
Chicago-Kent Law Review
Supreme Court confirmation hearings provide a rare opportunity for the American people to hear what (would-be) justices think about the nature of judging and the role of the Supreme Court. In recent years, nominees have been quick to talk about judging in terms of neutrality and objectivity, most famously with Chief Justice Roberts’ invocation of the “neutral umpire,” and they have emphasized their reliance on legal texts and sources as if those sources can provide answers in difficult cases. Many of the cases heard by the Supreme Court, however, do not have objectively correct answers that can be deduced from …