The Supreme Court sometimes abandons longstanding or widespread readings of its own precedents by blaming a dissenting opinion. “Our previous majority was fairly clear,” the Court effectively says, “except that the dissent in the relevant case cast a spell over readers, leading them astray.” This practice of blaming dissents is both interesting and consequential, appearing for example in Gant as well as the recent decision in Lightfoot.
Category Archives: Judicial Rhetoric
Last Wednesday, the Court issued an opinion in Lightfoot v. Cendant Mortgage Corp.—a case about federal jurisdiction that serves as a useful illustration of a distinctive way of using and modifying precedent: narrowing. Lightfoot is also interesting in raising the possibility that narrowing jurisdictional precedents might be a special undertaking that ought to be governed by distinctive principles.
Justice Elena Kagan recently gave the “Scalia Lecture” at Harvard Law School. The event, which is visible online, consisted of a conversation between Kagan and Professor John Manning. For those interested in interpretive trends at the Court, this video is worth watching. As a scholar-jurist, Kagan speaks both broadly and specifically about her approach to text. And besides being erudite and accessible, the conversation manages to be charming, too.
Kagan’s lecture reinforces a conventional wisdom on textualism’s recent success. Early on (9:10), Kagan beautifully describes the Scalian turn in statutory interpretation while acknowledging its incompleteness. Over time, anti-textualist views have fallen away, so that the center of gravity has moved toward Scalia. Yet Scalia still lies near one end of a spectrum. Both Kagan and Manning adduced evidence of this shift. But the most powerful proof of this claim is the lecture itself. When Kagan, a recent democratic appointee to the Supreme Court, gives a “Scalia Lecture” at Harvard Law School and says (8:25) that “we’re all textualists now,” she has already gone a long way toward proving that point.
But even Kagan’s nuanced lecture, like the conventional wisdom, may give an exaggerated impression of textualism’s ascendance. While certain strong versions of purposivism are all but vanquished, the Court’s most recent term and even Kagan’s own comments suggest that a more moderate, evolved form of purposive reasoning is alive and well.
Obergefell has spawned an interesting discussion about the use and abuse of rhetoric in Supreme Court opinions. (E.g., here, here, and here.) One especially salient charge is that the Court’s opinions in Casey, Lawrence, and now Obergefell all rely on “showy profundities,” as Justice Scalia has put it. But the rhetoric at issue may simply reflect a certain kind of philosophical writing, as evidenced by a forthcoming paper by Vincent Phillip Muñoz. (By way of disclaimer, I clerked for Justice Kennedy several years ago.)
Today’s King v. Burwell face-off between Chief Justice Roberts and Justice Scalia illustrates a difference in emphasis between these two mavens of judicial restraint.
For Scalia, judicial restraint primarily means adherence to a neutral method of decision-making. If courts scrupulously follow that proper interpretive method, then they are engaged in judicial restraint—no matter the practical consequences.
For the Chief Justice, by contrast, judicial restraint is more about the destination than the journey. If court rulings are having the practical effect of demolishing plans or sowing confusion, then they are unrestrained—no matter their method.
As regular readers know, one of my favorite fallacies is the “tu quoque” or “you, too!” fallacy – that is, the argument that a proposition is wrong because it’s advocated by someone who previously said the opposite. For some reason, this fallacy recently seems to come up in connection with Justice Ginsburg. Tu quoque made another appearance in today’s decision in Dart Cherokee Basin Operating Company, LLC v. Owens–and, once again, Justice Ginsburg was at the center of it.
On Monday, the Ninth Circuit issued a 6-5 en banc decision granting habeas relief for a Miranda violation. The case, Sessoms v. Grounds, has garnered attention in part because Chief Judge Kozinski wrote an opinion “regretfully dissenting” from the court’s judgment. Remarkably, Kozinski voted to deny habeas relief, even though he was “glad” that his own view of the law lost. Kozinski’s reluctant dissent provides a window into how judges struggle with the sometimes conflicting demands of law and justice.