After Scalia: Not just Who? but What? - HCSAZ

After Scalia: Not just Who? but What? - HCSAZ

After Scalia: Not just Who? but What? Greg Sakall Topics to Discuss Scalias interpretive philosophies & his impact on the Court The impact of Scalias death on the Court Statutory & Constitutional Interpretation Pending Cases

Future Cases Another Harvard Nominee Merrick Garland Antonin Nino Scalia Harvard Law Associate Justice U.S. Supreme Court: September 26, 1986 February 13,

2016 15th Longest-Serving Justice Between 1986 and 2014, Scalia was the deciding vote on 342 decisions, and voted on the conservative side 284 times in these decisions. Conservative icon & author

He Served on Conservative Courts But He Generally Wasnt the Most Conservative Justice His Concurrences His Dissents Colorful Argle-bargle

Pure Applesauce Jiggery-pokery Powerful "We disagreed now and then, but when I wrote for the Court and received a Scalia dissent, the opinion ultimately released was notably better than my initial circulation."

Justice Ginsburg The Result: We Talk About Him Scalias Interpretive Philosophies Scalias official portrait Importance of: Websters Second (1934)

The Federalist Papers Textualism & Originalism Statutory Interpretation: Textualism Questions of Interpretation

How would you go about resolving the following question: Does an ordinance that says that no person may bring a vehicle into the park apply to an ambulance that enters the park to save a persons life? Scalia & Garner: Reading Law: The Interpretation of Legal Texts, 2012. Plain Meaning Statutes are to be interpreted using the ordinary meaning of the language of the statute. In other words, a statute is to be read word for word and is to

be interpreted according to the ordinary meaning of the language, unless a statute explicitly defines some of its terms otherwise or unless the result would be cruel or absurd. Purposivism Determining and interpreting the purpose of a statute is paramount. Interpret an enactment (i.e.,

a statute, part of a statute, or a clause of a constitution) in light of the purpose for which it was enacted. Strong vs. Weak: Resolving ambiguities Textualism Reaction to focus on legislative purpose To attribute purpose as a historical matter is almost absurd:

When it comes to legislative intent, Scalia insisted that theres no there . Modern legislature: Compromise & committees Limited role of judiciary Scalia: look for meaning in the governing text, ascribe to that text the meaning that it has borne from its inception, and reject judicial speculation about both the drafters extra-textually derived purposes and the desirability of the fair readings anticipated consequences.

Textualism Text & nothing but the text. Clear text is clearly binding, except perhaps for scriveners errors. Canons of construction Dictionary definitions Applying abstract, general rules without concern for the results in the particular case. So how would Scalia resolve the ambulance case?

Common-law defense of necessity Result & Remedy Result: Conservativism Textualism hobbles legislation and thereby tilts toward small government and away from big government, which in modern America is a conservative preference.

Judge Richard Posner Remedy: Amend the statute! Legacy of Textualism It will probably be Scalias intellectual legacy. All SCOTUS justices except Breyer are to varying degrees textualists. We are all textualists now.

Justice Kagan, (December 2015) Constitutional Interpretation: Originalism Living Constitution The Constitution is a living document that should be interpreted to reflect fundamental underlying principles such

as "human dignity" as well as the values of a given era that might not be expressly stated in the Constitution. "For the genius of the Constitution rests not in any static meaning it might have had in a world that is dead and gone, but in the adaptability of its great principles to cope with current problems and current needs. Justice Brennan

Originalism Reaction to Warren Court and Living Constitution The Constitution is dead. Its dead, dead, dead. Scalia, at SMU (2013) Interpret Constitution

according to the Founding-era public meaning of the Constitution and the Bill of Rights as understood by the people in the state ratifying conventions.

Originalisms Justifications It comports with the nature of a constitution, which binds and limits any one generation from ruling according to the passion of the times. It supports legitimate popular government that is accountable and accords with the constitutional purpose of limiting government. It limits the judiciary. Remedy

We might have covered ourselves with honor today, by promising all sides of this debate that it was theirs to settle and that we would respect their resolution. We might have let the People decide. But that the majority will not do. Some will rejoice in todays decision, and some will despair at it; that is the nature of a controversy that matters so much to so many. But the

Court has cheated both sides, robbing the winners of an honest victory, and the losers of the peace that comes from a fair defeat. We owed both of them better. I dissent. U.S. v. Windsor (Scalia, dissenting) Another justification of originalism It is not, necessarily, resultoriented. It can be an interpretive

method for conservatives and liberals who favor judicial restraint. Justice Hugo Black D.C. v. Heller (2008) Second Amendment Scalia v. Stevens Scalias Liberal Rulings Flag burning

First Amendment: Texas v. Johnson (1989) Confrontation Clause The Sixth Amendment's Confrontation Clause gives defendants the right to confront witnesses and cross-examine their testimony. Crawford v. Washington (2004) 4th Amendment Cases Warrant: thermal imaging of house. Kyllo v. U.S. (2001) Warrant: GPS surveillance. Jones v. U.S. (2012)

Jones v. U.S. (2012) Jones was arrested on Oct. 24, 2005, for drug possession after police attached a tracker to Jones's Jeep -- without judicial approval -- and used it to follow him for a month. Did this violate the 4th Amendment? The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place

to be searched, and the persons or things to be seized. Jones continued Prior 1967 caseKatz4th Amendment protects persons from unreasonable searches & seizures where the person has a reasonable expectation of privacy Subjective and Objective: Is this an expectation that society is prepared to recognize as reasonable?

Does this change your analysis of Jones? Jones continued Unanimous decision, with fractured justifications Scalia for 4 justices: 4th Amendment is tied to common-law trespass at time of Founding; this was a trespass; thus, warrant required Sotomayor: critical 5th vote: yes, trespass occurred; Katz expanded 4th Amendment to privacy; need to reconsider third-party doctrine (US v Miller (1976)) Alito for 4 justices: no trespass here; Katz has problems but allows for

legislative fixes Scalias death: A new justice replacing Scalia could alter our 4th Amendment jurisprudence, especially the third-party doctrine Legacy of Originalism It will fade away. The Supreme Court is virtually the only significant audience for originalist constitutional arguments, and it is unlikely to be much interested anymore with Justice Thomas as the sole

remaining originalist. Prof. Eric Posner, Univ. of Chicago It will continue as lower court judges, conservative political movements, and the legal community outside the courts, remain interested. Prof. Jack Balkin, Yale It was never really that important as it was always just window dressing intended to justify decisions that were actually based on

political agendas. Prof. Eric Segall, Georgia State Legacies of Originalism Judicial modesty Judges generally do not advocate for seeing the Constitution as a vehicle of social change No one now advocates for a living Constitution search for new phrase

Constitutional fidelity CA Supreme Court Justice Goodwin Liu Breyer: The Court should regard the Constitution as containing unwavering values that must be applied flexibly to ever-changing circumstances." Scalias Death: Pending Cases Pending Cases

Immigration: US v Texas Public-sector unions fees: Friedrichs Affirmative action: Fisher; Univ of Texas Obamacare, Contraception & RFRA: Little Sisters of the Poor Abortion: Hellersted 3 Class Actions cases Possible outcomes Argued cases assigned to Scalia: Per curiam decision? Reargument; hold the case over to next term

4-4 split & affirmance the lower court Confusion in some cases: Little Sisters of the Poor Scalias Death: Future Cases Future cases It will affect cases that parties choose to bring For example, some argue Scalia played a key role in moving

American law in a more corporate-friendly direction. Dow Chemical paid $835M to settle a class action case shortly after Scalias death because . . . With the untimely, unfortunate death of Justice Scalia, it leaves in question the current structure of the court, Dow Chemical spokeswoman Rachelle Schikorra told WSJ. With this changing landscape, the unknowns, we just decided to put this behind us. Future cases without Scalia First Amendment: He deferred to the democratic majority on

issues of compelled speech and religious freedom. Smith (Free Exercise) & Town of Greece (Establishment) Corporate personhood: Citizens United & Hobby Lobby He opposed the principle that parents have a constitutional right to the upbringing and education of their children. Second Amendment: Heller was 5-4 Eighth Amendment: death penalty; Glossip A Harvard Man:

Merrick Garland Garlands Judicial History D.C. Circuit Judge since 1997; Chief Judge since 2013 C.J. Roberts: any time Judge Garland disagrees, you know youre in a difficult area. Garland (1995): [f]ederal judges do not have roving

commissions to solve societal problems. The role of the court is to apply law to the facts of the case before it. Not seen as a textualist or as having an academic theory diving his jurisprudence. Centrist; deciding each case on its facts. Garlands Judicial History He rarely votes in favor of criminal defendants' appeals of their

convictions. He adopted the position that was more favorable to the government than liberal members of same bench. He favors deference to agency decisionmakers. In environmental cases, he has been most willing to disagree with agency action. He has favored civil rights plaintiffs receiving an appropriate day in court. He has tended to take a broader view of First Amendment rights. He has generally rejected assertions of constitutional rights.

Garlands Judicial History His rulings on standing are not easily categorized. On FOIA cases, he has a preference for open government. Second Amendment: Voted to rehear Heller Election financing: 2008: jointed decision saying FEC wasnt doing enough to implement Mcain-Feingold 2015: authored unanimous decision to uphold a ban on government contractors making political contributions

Scalias Replacement? Predictions?

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