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Showing posts with label originalism. Show all posts
Showing posts with label originalism. Show all posts

Wednesday, July 01, 2009

Happy Canada Day. Let's celebrate with links.

* SEK considers Infinite Summer's weird morbidity (yes, it is weird), as well as the murky fluidity that constitutes literary "generations." Despite the many other projects that already threaten to consume July I've decided to halfheartedly participate in this, and may even post about once I've caught up to where I'm supposed to already be in the book.

* "Pseudo-Liveblogging Tenure Denial": just reading the headline is enough to fill me with dread.

* Richard Dawkins helps fund the world's least-fun summer camp.

* Following up on my post about Ricci and originalism from earlier in the week, in which as usual the comments are better than the post, here's Chuck Todd on MSNBC calling out the judicial activism to a speechless Joe Scarborough.

* Wal-Mart on the side of the angels? The monolith has endorsed an employer mandate in health care.

* Video games as murder simulators? The same claim can be made about just about any immersive media experience (and has been), with the existence of negative effects always taken as obvious but never actually demonstrated. (via /.)

* I have only vague memories of the original Alien Nation, though it's been in my Netflix queue for a while—so I'm glad to see rumors of a sequel series helmed by Angel's Tim Minear. More at Sci-Fi Wire.

* Sainthood in America: the Archdiocese of Baltimore may soon recommend a local 19th-century priest to the Vatican for canonization. I found it an interesting look at the balancing act that must now be played when looking for miracles in an age of science:

"Something worked very well," said Dr. Larry Fitzpatrick, chief of surgery at Mercy Medical Center, who will serve as medical expert on the archiocesan committee.

Preparing for his committee role, Fitzpatrick spoke to specialists at Memorial Sloan-Kettering Cancer Center in New York and M.D. Anderson Cancer Center in Houston.

"They've all got a few stories like this," he said. "Is this woman really any different from these, what I would call 'statistically improbable' cases? The outcome is very unusual, but it's not the only one."

Fitzpatrick said his role on the panel is to be the scientist, to "be the Doubting Thomas," but as a Catholic, he says, he must entertain the possibility of a supernatural cause.
What method could one possibly use to divide what is merely "statistically improbable" from what is "genuinely miraculous"?

Monday, June 29, 2009

Excitement on the SCOTUS beat as the Court overturns the lower court Ricci decision in a 5-4 vote along the usual partisan breakdown. Since Sonia Sotomayor had been part of the Second Circuit's upholding of the original decision, now overturned, this decision will undoubtedly receive a lot of attention even beyond the usual contentiousness that surrounds affirmative action. I haven't followed the case closely enough to say much of anything about it—and to be fair it sounds like an especially hard case—though my gut reaction to any 5-4 decision from the Roberts court closely matches this take from conservative columnist Ramesh Ponnuru in the New York Times:

The debates on these issues are highlighting a deep inconsistency in the way my fellow conservatives approach race and the law. Many conservatives oppose Judge Sotomayor’s nomination because she does not appear to support originalism, the notion that legal texts, including the Constitution, should be interpreted according to the meaning that the informed public assumed them to have when they became law. We argue as well that judges should try to overcome the biases of their backgrounds in the name of self-restraint. But when it comes to the race cases before the Supreme Court, too many conservatives abandon both originalism and judicial restraint.
Where Ponnuru and I differ, of course, is in his belief that originalism as a judicial philosophy has any useful content whatsoever. I don't think it does; as I've said before, it's a rhetorical strategy, not a method, deployed when convenient and passed over when not.

Wednesday, May 27, 2009

Here's a clip from tonight's Hardball in which the Judicial Confirmation Network's Wendy Long makes the remarkable claim that Brown v. Board of Ed was an originalist court decision. I hadn't heard this talking point before, but apparently the right has been trying to figure out some way to spin Brown as an originalist decision for some time. Keep at it, guys! I'm sure you'll crack the code someday.

On the other hand, given that "originalism" as a judicial philosophy denotes only the median conservative position on any given issue at any given moment in time, I suppose Brown is an originalist position after all...

Friday, May 01, 2009

The Plank climbs aboard the anti-Scalia train, though it doesn't use that terminology.

What I suspect many liberals really long for--and this is reflected in the Dahlia Lithwick piece Adler links to--is not so much someone to push the Court in a substantially more liberal direction (at least in the short term), but someone to unabashedly play culture warrior in the way that Scalia has sometimes done. Someone to "speak with a roar" and exercise "dramatic flair"--"some cross between Rachel Maddow and Emma Goldman." What they're unhappy with is not primarily the Court's decisions, but the absence of a liberal on the Court with the ability to capture the imagination of the public (and perhaps legal academia) in the way that Scalia has. To be a Supreme Court justice is to have access to a sort of intellectual bully pulpit that few other jobs come with, and it's in this capacity, rather than the doctrinal one, that liberals have been disappointed.

I'm not sure many liberals have given much consideration to the notion that there might, in fact, be a direct trade-off between public dynamism and behind-the-scenes effectiveness. But it's a question they'll now have to grapple with sooner rather than later.

I twittered last night about whether the buzzword for Obama's upcoming Supreme Court vacancy should be "liberal Scalia" or "anti-Scalia." "Liberal Scalia" looks to be off to an early lead, but thinking more and more about it I think we really want an anti-Scalia: a jurist whose thoughtfulness and equanimity informs her decisions.

Not claiming to know the answer to every question in advance is, after all, arguably the key progressive value.

The liberal Scalia is another hack, just "our" hack. We want Scalia's opposite number, not his non-evil twin.