As calls for judges (and justices) to show "courage" grow louder, the case for why courage shouldn't become a license for federal courts to ignore the public—or the representatives it elects.
I fully agree. I’m always impressed with his analysis of constitutional and national security questions, and I am totally impressed that he is able to connect Hannah Arendt‘s thinking to judicial philosophy.
I follow people like Professor Vladeck because he and others like him are constantly adding to my list of “must reads.” “Ad hoc, ad loc, and quid pro quo! So little time! So much to know,”
The intersection of law and literature; it doesn't get any better. Since the courts interpret the law it should not be surprising that people disagree with many rulings, or that interpretations change over time. The English language has a huge inventory of adjectives, adverbs, verbs and punctuation all of which inevitably lead to disagreements and confusion. Some judges write well, others do not. And, language changes over time. I agree that the best we can hope for is that justices have the courage to follow the law to their conclusions, instead of making their conclusions and then looking for points of law to justify them. I also think originalism needs to stop being an excuse for bad reasoning.
Part of the problem is that judges started out as lawyers and lawyers do indeed advocate for their clients, or for particular positions or policies, and use the technique of working backward from the conclusion they want to find the reasoning to support it. Most judicial opinions, take their reasoning, and often the exact wording they use directly from one or more briefs filed by lawyers in the case.
Stephen Vlsdeck is always thoughtful, but he makes me feel very inferior because he's read so much more than I have
I fully agree. I’m always impressed with his analysis of constitutional and national security questions, and I am totally impressed that he is able to connect Hannah Arendt‘s thinking to judicial philosophy.
I follow people like Professor Vladeck because he and others like him are constantly adding to my list of “must reads.” “Ad hoc, ad loc, and quid pro quo! So little time! So much to know,”
The intersection of law and literature; it doesn't get any better. Since the courts interpret the law it should not be surprising that people disagree with many rulings, or that interpretations change over time. The English language has a huge inventory of adjectives, adverbs, verbs and punctuation all of which inevitably lead to disagreements and confusion. Some judges write well, others do not. And, language changes over time. I agree that the best we can hope for is that justices have the courage to follow the law to their conclusions, instead of making their conclusions and then looking for points of law to justify them. I also think originalism needs to stop being an excuse for bad reasoning.
Part of the problem is that judges started out as lawyers and lawyers do indeed advocate for their clients, or for particular positions or policies, and use the technique of working backward from the conclusion they want to find the reasoning to support it. Most judicial opinions, take their reasoning, and often the exact wording they use directly from one or more briefs filed by lawyers in the case.
It is also noteworthy that “originalists” sometimes I apply originalism
When it suits their conclusion, and other times, not so much.
Steve’s point is so simple and logical. Why more judges and other legal influencers don’t talk about it is just amazing.