Posted on 10/19/2017 11:14:24 AM PDT by Sopater
Supreme Court Justice Elena Kagan said Monday the high court has adopted much of the late Justice Antonin Scalia's textualist judicial reasoning.
Kagan was speaking to an audience at the Chicago-Kent College of Law when she said that Scalia's judicial reasoning has come to dominate the court, the Washington Examiner reported.
Scalia, who sat on the Supreme Court for 30 years before his death in 2016, was a proponent of textualism, a theory in which the interpretation of law is based on the meaning of legal text as it would be commonly understood at the time of its passage, and does not consider other factors like the law's intention when passed.
"In their full context, words mean what they conveyed to reasonable people at the time they were written—with the understanding that general terms may embrace later technological innovations," Scalia and co-author Bryan Garner wrote of textualism in their 2012 book Reading Law.
Kagan explained that she believes the high court has two poles of judicial interpretation—Scalia and his strict textualism on one end, and Justice Stephen Breyer, who emphasizes a law's purpose and its real-world outcomes, on the other.
Kagan said the court as a whole is much closer to Scalia's viewpoint.
"I think, for the most part, we are within those poles but much closer to the Scalia pole: That we are a generally, fairly textualist court, which will generally think when the statute is clear you go with the statute," Kagan said. "Pretty much all of us now look at the text first and the text is what matters most."
"And if you can find clarity in the text that's pretty much the end of the ballgame," she continued. "Often texts are not clear, you have to look [farther]."
Former President Barack Obama nominated Kagan to the Supreme Court in 2010 to replace Justice John Paul Stevens. Before being named to the high court, Kagan served as the country's first female solicitor general, the person who represents the U.S. government in cases before the Supreme Court.
Kagan and Scalia had a friendship outside of the court. During her confirmation process, Kagan invited herself to one of Scalia's hunting trips to better understand guns and proponents of the Second Amendment. Scalia took Kagan to his gun club, where she learned gun safety. After she was ready, the two would go on hunting trips that allowed their friendship to grow.
"He was as generous and warm and funny as a person could be. I just so appreciate all the time I got to spend with him," Kagan said six months after Scalia's death. "I miss him a lot."
obama and it’s god meant Scalia’s murder for evil, but God made it into something good.
Contrary to what the late Justice Antonin Scalia allegedly said about law’s intention, Thomas Jefferson had put it this way.
"The true key for the construction of everything doubtful in a law is the intention of the law-makers. This is most safely gathered from the words, but may be sought also in extraneous circumstances provided they do not contradict the express words of the law." --Thomas Jefferson to Albert Gallatin, 1808.
And all due respect to the family, friends and supporters of Justice Scalia, imo his alleged statement about textualism doesn’t compliment the legal principle that ignorance of the law is no excuse.
In fact, most people evidently don’t read laws for themselves, instead relying on word of mouth to learn about a law.
But consider that a MAJOR problem with learning a law by word of mouth is that the law gets distorted by rumor, hearsay and gossip.
Corrections, insights welcome.
Norman carried a gun openly in Florida and, despite having a valid concealed carry permit, was charged with a crime. The Florida Supreme Court upheld the conviction. Norman is appealing to the Supreme Court.
The Supreme Court will hopefully take the case and decide what the Second Amendment means when it says, "the right of the people to [...] bear arms shall not be infringed".
In prior decisions, the phrase "bear arms" has been discussed and some argued that it only referred to bearing arms in defense of the nation, or some such nonsense.
Wiser heads recognized that to "bear arms" means to carry them, including for purposes of self-defense. Bearing arms for purposes of defending the nation is a part of "bearing arms".
The question then becomes, what did the Founders mean when they ratified an amendment which protects bearing arms? Since the vast majority of people who were bearing arms at that time, whether for self-defense or defense of that nation, would have been carrying long guns, just how would it be possible that the founders intended the government to be able to outlaw the bearing of long guns by demanding that guns be carried concealed?
I don't see how Norman can be disappointed except for the possibility that the liberals will make it known that they care so little for the Constitution that they will discourage the Court from taking the case.
This is an important case for Kalifornia since it will address the prohibition against open carry and will also affect the "may issue" permitting process which is a legal abomination. How will it do that, you might ask?
The answer is that the legislators and the governor will rush to their desks to create a "shall issue" concealed carry law in order to encourage people who will be carrying openly to conceal their arms. I plan to be among such people.
Wouldn't that be something? We seem to see cases where Republican appointed justices have drifted left. Wouldn't it be incredibly satisfying if the Court became solidly conservative not only because of Trump's appointments but because of the effect of the wisdom of such appointees on the other justices?
I referred in a posting above to discussions regarding "bearing arms". I believe it was Ginsburg who properly recognized that such a term simply meant to "carry arms". Unfortunately, she doesn't recognize a right to self-defense so she remained on the wrong side of the decision.
Liberals dare not embrace a right to self-defense. The right to defense of family, community, and nation are natural consequences of such a right. Progressives could never support such a concept.
Somehow I think “emanations and penumbras” will still drive the progressive-left on the court.
The 2nd amendment is textually clear to me.
I don’t see a transcript of her speech out there, but evidently there will be a video posted at this website:
“In fact, most people evidently don’t read laws for themselves, instead relying on word of mouth to learn about a law.”
If the government wanted people to read the laws for themselves, they would set a reasonable maximum number of laws, and make a rule that all the laws had to be at most a few sentences long, written in plain language that someone without a college degree could understand.
For an example of a system of laws designed for everyone to be able to read and understand, see the 10 Commandments. For an example of laws that are designed to be byzantine and inscrutable, see the US Code.
I winced a bit at the same portion of the Scalia quote that you highlighted.
It seems that this would indicate that there is some kind of divergence between “textualism” and “original intent”, but I don’t think that the difference is really all that stark.
The law should be read as the text was both written AND intended at the time it was written. The two go hand in hand.
Are we sure that was the intention of the author when they wrote “textualist”? There maybe some other penumbras and emanations of meaning that aren’t clear unless we do some further investigating.
I don't think I believe her, but wouldn't it be nice if for once a liberal nominee became more conservative over time?
Lesbo says what? ...
maybe she will miss scalia so much, she will quit the bench.
Really? So how come we know how every single dem appointed justice is going to rule on every case in advance simply by looking at the dem party position rather than the law? Hmmm?
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