Bench Memos

NRO’s home for judicial news and analysis.

A Legend Passes


University of Chicago Professor David P. Currie (1936 – 2007) passed away yesterday.  He was, without a doubt, the finest Constitutional Law professor in the country, and one of the most remarkable scholars from whom I had the distinct honor and privilege to take classes.  His Constitution in the Supreme Court: The First Hundred Years  and The Second Hundred Years stand as testaments to his remarkable contribution to the study of law.  He will be missed.

This Week in Liberal Judicial Activism—Week of October 15


Oct. 15      1956—So much for basing Supreme Court selections on short-term political calculations.  Informed by his campaign advisers that appointing a Catholic Democrat from the Northeast to the Supreme Court would attract critical voters in the upcoming presidential election, President Eisenhower recess-appoints New Jersey supreme court justice William J. Brennan, Jr. to the vacancy resulting from Sherman Minton’s resignation.  That decision appears to have been as unnecessary as it was foolish:  Eisenhower wins re-election over Adlai Stevenson by a huge margin, 57% to 42% in the popular vote and 457 to 73 in the electoral college.  And, more than any other justice in history, Brennan deforms the Supreme Court’s understanding of the Constitution during his 34-year tenure.


Oct. 16      1898—William Orville Douglas, who, alas, will become the longest-serving justice in Supreme Court history, is born in the town of Maine in Minnesota.  (See This Week entry for April 4, 1939, for Judge Richard A. Posner’s colorful summary of Douglas’s life and career.)


Oct. 20      2006—Another Ninth Circuit ruling, another unanimous reversal by the Supreme Court.  Fifteen days earlier, a two-judge motions panel of the Ninth Circuit, consisting of Clinton appointees A. Wallace Tashima and William A. Fletcher, had issued a four-sentence order enjoining Arizona from enforcing the voter-identification provisions of its Proposition 200 in the November 2006 election.  In its unanimous per curiam reversal (in Purcell v. Gonzales), the Supreme Court observes that the Ninth Circuit panel “fail[ed] to provide any factual findings or indeed any reasoning of its own” and failed to give appropriate deference to—or even to await—the factual findings underlying the district court’s determination that a preliminary injunction was not warranted.


Oct. 21      1949—President Truman recess-appoints David L. Bazelon to the D.C. Circuit.  With a  lifetime appointment from Truman a few months later, Bazelon serves for 30 years in active status and an additional 14 years in senior status.  On his death in 1983, a New York Times obituary praises him for “expanding the rights of criminal defendants” and for disregarding precedent:  “Rather than follow precedent set in a simpler time, he questioned the status quo and sought to apply new findings in the social sciences and psychiatry to issues the court faced.”  The obituary also states that Bazelon “believed the judiciary should reach beyond the bench and speak out on social issues,” but that he “was assailed by conservatives as being soft on crime.”

One testament to Bazelon’s craftsmanship:  In 1978, in a unanimous opinion written by Justice Rehnquist (in Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council), the Supreme Court reverses decisions by Bazelon that would have overturned the Atomic Energy Commission’s grant of an operating license and a permit to nuclear power plants.  Bazelon’s decisions “seriously misread or misapplied” basic principles of administrative law, the Court rules, and amounted to “judicial intervention run riot.”


For an explanation of this recurring feature, see here.

Tags: This Day in Liberal Activism


Attacking Clarence Thomas and Proving Him Right


In today’s Washington Post Outlook section, Georgetown law professor Emma Coleman Jordan gives a perfect demonstration of what it means to wear ideological blinkers.  Here’s a precis of her argument: Clarence Thomas complained of a “high-tech lynching” in the Senate Judiciary Committee sixteen years ago.  His book suggests that his background and his experience should give him some insight into the very real lynchings that used to occur in the American South.  But his legal opinions in opposition to every kind of racial preference in favor of blacks support the conclusion that he is not really concerned about their plight at all; he is a hypocrite who cares only about “lynching” when it happens to him.

Yes, that’s her argument–if “argument” is what you want to call it.  Jordan’s take is the sort of implicitly racist view of black Americans to which Clarence Thomas’s memoir is a rebuke–as is the whole life he recounts in that book.  For Jordan, there is just one way a black can view racial preferences–her way, the liberal way, in favor of them.  No other response is adequate or appropriate as a response to the black experience in America.  Certainly for a black person, there is no other recourse aside from endorsing racial preferences that can make his blackness intelligible and coherent.  There is just one way to think black, to be black–and Clarence Thomas deviates from that one way.  Hence his complaints long ago about a “lynching” ring hollow and false for Jordan.

Never mind that Jordan’s argument is also feeble for a law professor.  She evinces not the slightest interest in what the Constitution or the civil rights statutes permit or forbid.  For her, it’s all about results.  But on that score she simply fails to meet Thomas’s argument on the ground he has so ably staked out.  As he cogently argues, what Jordan calls “remedies designed to right discriminatory wrongs” have just replaced one discriminatory wrong with another, and harm those they are ostensibly designed to help.  While Jordan quotes Thomas’s book once or twice, it’s hard to believe she’s actually read it.  Or if she has, its argument has gone right past her without leaving a mark on her consciousness.  In her Post article, she doesn’t even acknowledge the existence of Thomas’s argument, let alone attempt to refute it.  All she can manage is the racist non sequitur of saying, in effect, ”the black man who says ‘lynching’ must say ‘racial preferences.’”

Maybe if Jordan can’t take the time to read Thomas’s book to find his argument (which can be found almost anywhere the book is opened at random), she could read Shelby Steele’s beautifully composed and deeply wise article on Thomas’s book in the latest NR.  If I could make a suggestion to Justice Thomas and his publishers, it is that Steele’s article should be reprinted as a foreword in the paperback edition of the memoir.

Upcoming Yale Law School Event


Next Monday evening, October 15, I will be taking part in a discussion at Yale Law School with Yale law professor Robert C. Post on “Judging the Roberts Court”.  Professor Post and I will be presenting our competing frameworks for assessing the Court and will be discussing contested issues and cases in the context of those frameworks.  (Here’s a recent New Republic essay, co-authored by Prof. Post, that urges the Left to develop modes of constitutional interpretation that vindicate progressive values.)


The discussion, which is sponsored by the Yale chapter of the Federalist Society, will begin at 6:10 p.m. in Room 129 in the Sterling Law Building.  For more information, contact Claire McCusker at [email protected].

Tags: Whelan

Justice Thomas’s Memoir


Travel and other obligations have prevented me from keeping current on the back-and-forth over Justice Thomas’s new book, so I’ve especially enjoyed Matt’s posts and all the other NRO reviews and coverage. 


I did find time last week to read My Grandfather’s Son.  Bottom line:  It’s a beautiful and powerful and revealing account of Justice Thomas’s amazing path from Pin Point to the Supreme Court—and of his relationship with the remarkable grandfather who raised and formed him. 


I’ve also watched some of the excerpts (available here) of ABC News’s Jan Crawford Greenburg’s very interesting interview with Justice Thomas and look forward to more.

Tags: Whelan


Clarence Thomas, Man and Justice


If you didn’t listen to Bill Bennett’s terrific interview with Clarence Thomas during this last half hour, I’m sure that it will be available later on the “Morning in America” website.  And check out the WSJ column of former Thomas clerk John Yoo, on the jurisprudence of his old boss.  I agree with Yoo that Thomas “is the justice most committed to the principle that the Constitution today means what the Framers thought it meant.”  I would demur, however, from Yoo’s implicit proposition that originalism inexorably produces results like these: that “the use of thermal imaging technology by police in the street to scan for marijuana in homes violates the Constitution’s ban on unreasonable searches”; or that “harsher criminal sentences . . . based on facts found by judges rather than juries” offend the Constitution; or that “advertising and other commercial speech [should] receive the same rights as political speech.”  An originalist could say all these things, as Thomas does; another originalist could contradict every one of them.  The question would then be whose originalism amounts to better legal-historical reasoning.  But at least the argument would take place on the appropriate ground.

Calabresi v NYT


Northwestern law professor Steven Calabresi writes a letter to the editor of the NewYork Times responding to this hyperventilating editorial that complained about the allegedly “hyperpartisan” Roberts Court.

You complain that the Roberts Court is unprincipled and simply reaches policy results that conservative Republicans favor (editorial, Sept. 30). This is false.

Justices Antonin Scalia and Clarence Thomas, for example, regularly reach left-wing results where the law compels them. Consider their votes to find flag-burning constitutionally protected, strike down the sentencing guidelines and uphold gargantuan punitive damage awards.

Likewise, no Roberts Court member has ever suggested that the court should protect human life from conception to birth under the murder laws or the 14th Amendment.

It is great to see you endorse the idea that judges should have a non-result-oriented philosophy of judging. Admittedly, some may doubt the depth of your new-found commitment in light of the editorial’s conclusion that the court’s new term should be judged by whether it reaches The Times’s preferred results. Nonetheless, even lip service is a start.

This Week in Liberal Judicial Activism—Week of October 8


Oct. 9        1986—In Melbourne, Florida, George Porter, Jr., culminates his violent relationship with Evelyn Williams by invading her home at 5:30 in the morning and shooting her to death.  Porter had been the live-in lover of Williams from 1985 until July 1986, when, after several violent incidents, he threatened to kill her and then left town.  When he returned a couple months later, Williams had begun a new relationship.  Porter told Williams’s mother that he had a gift for Williams, and he persisted in trying to see her.  He tried to borrow, and then evidently stole, a gun from a friend and, a few days before murdering Williams, told another friend, “you’ll read it in the paper.”  On October 8, he visited Williams, who then called the police in fear.

If Porter’s murder of Williams—well after their relationship had ended and when they were no longer sharing a household—doesn’t sound like a “lovers’ quarrel or domestic dispute” to you, then you’re not Rosemary Barkett.  (Congratulations, by the way.)  Dissenting from the Florida supreme court’s affirmance of the death sentence that Porter received, Barkett, joined by Justice Gerald Kogan, complains:  “In almost every other case where a death sentence arose from a lovers’ quarrel or domestic dispute, this Court has found cause to reverse the death sentence, regardless of the number of aggravating circumstances found, the brutality involved, the level of premeditation, or the jury recommendation.”


Oct. 11      1990—More from Florida justices Rosemary Barkett and Gerald Kogan.  In Stall v. State, the Florida supreme court adheres to its previous precedents holding that Florida’s statute criminalizing obscenity is constitutional.  In a brief dissent, Barkett, joined by Kogan, asserts:  “A basic legal problem with the criminalization of obscenity is that it cannot be defined.…  Thus, this crime, unlike all other crimes, depends, not on an objective definition obvious to all, but on the subjective definition, first, of those who happen to be enforcing the law at the time, and, second, of the particular jury or judges reviewing the case.”  Enforcement of obscenity laws, she contends, “runs counter to every principle of notice and due process in our society.”  But Barkett does not even cite, much less discuss, U.S. Supreme Court precedent upholding obscenity laws against her objections.  Nor does she recognize that there are any number of criminal laws—criminal negligence, child neglect, the distinction between justifiable self-defense and unjustified homicide—whose definition or application is not more objectively “obvious to all” than for obscenity. 

In a separate and lengthy dissent, Kogan, joined by Barkett, argues that a state constitutional provision setting forth the right of every person “to be let alone and free from government intrusion into his private life” “necessarily must include a right of discreet access to [obscene] entertainment, writings, and other such material if the state cannot show that those materials are actually harmful to specific persons or that they intrude upon the rights of others.”


Oct. 14      1983—When a state carries out capital punishment by lethal injection, must the drugs used have been deemed “safe and effective” for that use by the Food and Drug Administration?  Writing for the majority on a divided D.C. Circuit panel (in Chaney v. Heckler), Judge J. Skelly Wright rules that the FDA arbitrarily and capriciously refused to exercise its regulatory jurisdiction over state-sanctioned use of lethal injections. 

In dissent, then-Judge Scalia argues that Wright “converts a law designed to protect consumers against drugs that are unsafe or ineffective for their represented use into a law not only permitting but mandating federal supervision of the manner of state executions.”  In applying the principle that agency non-enforcement decisions are presumptively non-reviewable, Scalia lambastes as the “height of irrationality” Wright’s “major reliance on what [Wright] calls the FDA’s ‘Policy Statement’”—a statement that in fact “is not an agency rule, and is indeed not even an authoritative policy statement,” but was instead “part of the policy justification set forth in a Notice of Proposed Rulemaking, with respect to a proposal that was never adopted.” 

On review (in Heckler v. Chaney), the Supreme Court unanimously reverses Wright’s holding and rules that the FDA’s decision not to institute enforcement proceedings was not judicially reviewable.  Even Justice Brennan joins Justice Rehnquist’s opinion for the Court, and Justice Marshall separately concurs in the judgment.


For an explanation of this recurring feature, see here.

Tags: This Day in Liberal Activism

Celebrating 191 Years of Victory


These guys must be the envy of all Washington interest groups–no losses on their scorecard since the organization was founded in 1816!

Admissible and Inadmissible


Blessings on Bench Memos readers for keeping this non-lawyer straight.  (And now Kathryn can expect the predictable e-mails from people newly or repeatedly outraged that a non-lawyer is even writing in this space.)  The other day I wrote, apropos of the Clarence Thomas-Anita Hill imbroglio of 1991:

I understand (and I know I will be corrected if I am wrong about this) that in sexual harassment cases, the testimony of persons contemporaneously told by a plaintiff that she was being harassed is sometimes admitted, on the theory that the perpetrators are so good at concealing their actions that eyewitnesses are often lacking and we must look elsewhere, trusting that no woman would make up stories to her friends about such terrible experiences.  This is a hearsay minefield in which fact-finders must tread very carefully.

Sure enough, I got the correction I needed.  One correspondent with apparent expertise (and the citations to back it up) assures me that Anita Hill’s witnesses before the Senate committee, testifying to what she told them either during or after her employment with Clarence Thomas, would not normally have been permitted to testify in a federal lawsuit over sexual harassment.  He adds: “A minority of courts might allow them to testify about what she said to rebut a claim by Thomas that her allegations were recent fabrications; but most courts wouldn’t let them in.”  Even where such testimony would be permitted, and where other loosening of normal evidentiary strictures is made to facilitate sexual harassment claims, my correspondent says, “the underlying facts have to be proven by admissible testimony by those with firsthand knowledge of them.”  The Democrats of 1991, and their latter-day defenders such as Ruth Marcus, prefer the secondhand testimony to the firsthand.  This is a useful reminder that in the name of defending the precious edifice of American law and constitutionalism against the threat of Clarence Thomas on the Supreme Court, liberals were willing to bulldoze evidentiary standards used in courts of law that were already pretty friendly to harassment claims.

Elrod Confirmed


With little fanfare, the Senate confirmed Judge Jennifer Walker Elrod to the U.S. Court of Appeals for the Fifth Circuit by a voice vote yesterday.  The Houston Chronicle reports on her confirmation here.  Senator Ben Cardin (D-MD) raised objections to her confirmation, but she was confirmed nonetheless.  (Link via ACSBlog.)

Is It the Times, or the Onion?


Savagely beating back all rival claimants for the title of World’s Silliest Newspaper, the New York Times editorializes today that Justice Clarence Thomas’s memoir My Grandfather’s Son is so suffused with anger (but see Mona Charen for the rest of the story) that Justice Thomas should . . . wait for it . . . recuse himself in all cases involving the interests of those who opposed his nomination!

So.  If  political forces, fearing a judge will be seated who will not agree with their arguments on legal issues, gin up a phony scandal to destroy a nominee’s reputation, and the nominee survives the assault and wins through to a seat on the bench, but remains peevish with those who sought to destroy him, he is thereafter forbidden by judicial ethics to sit in judgment on the persuasiveness of those legal arguments that they feared he would reject.  Neat trick: heads they win, tails he loses.  Since no normal human being can be expected to be utterly dispassionate about past assaults on his good name and reputation, this is a surefire winner for the most unscrupulous interest groups and politicians.  The worse you behave, the more good will come of it in terms of the ethical constraints you can impose afterwards on the judge.

It is true, as the Times says, that “justices should recuse themselves from participating in cases in which they are biased against a party or lawyer or in which their impartiality might reasonably be questioned.”  But, not surprisingly, the Times has adopted a skewed understanding of what “bias” and “partiality” are in the judicial context.  The relevant question is, where do a party’s interests cross paths with the judge’s interests?  Like everyone else, judges have opinions, even strongly held ones, about persons and groups as well as about issues.  They are paid to set those aside–unlike senators and newspaper editorial writers. 

The logical consequence of the Times’ position would be that no judges could decide any cases at all, because they are human beings who have notions.  But the Times editors wouldn’t apply that standard across the board.  Only to Justice Thomas, who has a special place in their hearts.

Catholicism and the SC


Marci Hamilton offers the ridiculous suggestion that the six Supreme Court justices who attended the Red Mass may have shown the appearance of impropriety, raising ethical questions. Appropriately, she retreads the tired and blatantly anti-Catholic argument of University of Chicago Law Professor Geoffrey Stone, who criticized the fact that the recent partial-birth abortion decision was decided by a Catholic voting block. She then praises President Kennedy, who she paraphrases as saying that he would not take his marching orders from Rome, and suggests that it would be “illuminating” if the justices were this open about the relationship between their faith and their jobs.

First, it is worth noting that six justices attended. For those of you keeping count at home, there are only five Catholic justices. Hamilton acknowledges that Breyer, who is Jewish, attended, and she can’t quite figure out why, surmising that he did so perhaps out of solidarity with his brethren. This seems likely enough to me, but it also suggests that the Red Mass is not an event where marching orders are given and received, and that any feigned perception of such is dubious at best. Indeed, aside from her argument that the Red Mass is somehow special because of its focus on the beginning of the judicial term, the criticisms that she mounts about the content of the homily, which included references to life issues, could be (and perhaps tacitly are being made) about virtually every mass conducted in the DC area. It is not just homilies at Red Mass where issues such as the sanctity of life are raised, but rather priests commonly address these issues. Priests, particularly those in the DC area, commonly pray openly at their masses admonishing those in positions of power to respect life. Does this mean that no justice should ever attend mass, lest it somehow offend the Marci Hamiltons of the world that they hear these prayers? And what of liberal denominations that overtly praise abortion rights in their services, and read NYT’s editorials from the pulpit (I am not kidding–I have seen it done)? Should we prohibit justices from attending those services?

Moving to her retread of Stone’s arguments, and his flaccid attempt disguise his musings as something other than anti-religious sentiment, I’ll leave those claims to Ed Whelan and Jan Crawford Greenburg, and Rick Garnett, who have already thoroughly refuted them.

Finally, her claim that it would be good if the Catholic justices were transparent, in the spirit of President Kennedy, makes it clear that she hasn’t done her homework. Justice Scalia is constantly asked about his Catholicism and judging (a two-minute Lexis search will confirm this), and he frequently notes that his job is to uphold the Constitution. If upholding the Constitution at some point meant that he would have to disobey a binding moral teaching of the church–the example he gives is if imposing the death penalty were determined to be a sin–then he would resign, because he would not impose his religious views on the Constitution. I only wish that liberals on the Court who use the law as a vehicle to express their own, sometimes religiously-held policy preferences, would be so transparent.

Oh, and before Marci Hamilton and Geoff Stone dismiss my statements here as mere marching orders from the Pope, I should add that I am not a Catholic.

There Are Witnesses, and Then There Are Witnesses


Over at The Corner, Ramesh answers a correspondent who says, among other things, that in my post here yesterday I did not deal “with those who testified to hearing [Anita] Hill complain about [Clarence Thomas] at the time” she worked for him.  These are the witnesses on whom Ruth Marcus partly relied in her Washington Post column that I criticized yesterday.

It is true that I did not deal directly with these witnesses on Hill’s side.  What I did say, however, is that on Thomas’s side were the only witnesses who knew them both and were in the workplace where Hill alleged Thomas’s offenses occurred.  I understand (and I know I will be corrected if I am wrong about this) that in sexual harassment cases, the testimony of persons contemporaneously told by a plaintiff that she was being harassed is sometimes admitted, on the theory that the perpetrators are so good at concealing their actions that eyewitnesses are often lacking and we must look elsewhere, trusting that no woman would make up stories to her friends about such terrible experiences.  This is a hearsay minefield in which fact-finders must tread very carefully.  The fact remains, in the Hill-Thomas controversy, that the only witnesses on Hill’s side of the case as to what allegedly happened to her in Clarence Thomas’s presence are persons who “know” what they claim to know because they learned it, whenever they did learn it, from . . . Anita Hill.  Assuming they all told the truth about how and when they came to know the stories they told, they could not actually attest to the truth of the stories themselves.

The witnesses who came forward to report that Clarence Thomas’s behavior was above-board in the workplace, and that Anita Hill was evidently comfortable in his presence, were there.  And what they had to say is compelling, in my opinion.

Justice Thomas on the Air


Justice Clarence Thomas is being interviewed by Laura Ingraham on her radio show as I write this.  I knew she had clerked for Justice Thomas.  I did not know that she was responsible for snapping his Achilles’ tendon on the basketball court, until she told the story this morning. 

I have met Justice Thomas just once, in the summer of 1993; he wouldn’t remember it, as I was just part of a group of young Turk college professors taken up to the Court by the Heritage Foundation to meet him.  I have a picture of our group with him, and poor Justice Thomas is sitting down, because one ankle is in one of those soft casts or braces–and the basketball story is what he told us (though I don’t recall him blaming a female clerk named Laura!).  What I remember is that he was still having trouble moving around without causing himself pain, yet he agreed to meet our inquisitive group and freely took our questions and talked about his work at the Court for at least an hour, then posed for the picture.  Until we posed for the photo, in fact, he wouldn’t even sit down, choosing instead to lean against a table at the front of the room while he spoke.  A gentleman willing to give of himself even at the cost of his comfort, when no one would have criticized him for waving us off.  That’s my personal memory of Clarence Thomas.

More on Marcus at Captain’s Quarters


It looks like I lit a fire under Captain Ed, who has gone to the transcripts.

She Omits, You Decide


In today’s Washington Post, Ruth Marcus, who covered the nomination of Justice Clarence Thomas for the Post sixteen years ago, declares that she was more inclined to believe Anita Hill than Thomas then, and that she believes Hill even more now.  She goes on to give “some of the evidence Thomas omits” from his memoir, My Grandfather’s Son

Thomas was under no obligation to tell Anita Hill’s side of the story in his memoir, but journalistic ethics would seem to require some balance on Ms. Marcus’s part, even in an opinion column.  She accuses Thomas of omitting the claims of witnesses at the time on Hill’s side of the dispute.  But Marcus leaves out entirely the fact that in 1991, the only witnesses to testify who had personal knowledge of both Thomas and Hill, and their interaction in the workplace at the relevant times, came down unequivocally on Thomas’s side.  I don’t claim any particular historical expertise here, but to my knowledge no one has ever rebutted the testimony of these contemporaneous witnesses to the Thomas-Hill workplace relationship, all of whom testified in October 1991:

  • J.C. Alvarez, a woman who worked as Thomas’s special assistant at EEOC for four years, who said that “[t]he Anita Hill I knew before was nobody’s victim,” and who went on to say that Thomas “demanded professionalism and performance,” and would not tolerate “the slightest hint of impropriety, and everyone knew it.”
  • Nancy E. Fitch, a special assistant historian to Thomas at EEOC, who said “[t]here is no way” Thomas did what Hill alleged.  “I know he did no such thing,” she declared under oath.
  • Diane Holt, Thomas’s personal secretary for six years, who often ate lunch with Anita Hill, and who swore that “[a]t no time did Professor Hill intimate, even in the most subtle of ways,” that Thomas did or said anything untoward.  “Nor did I ever discern any discomfort, when Professor Hill was in Judge Thomas’ presence.”
  • Phyllis Berry-Myers, another special assistant to Thomas, who said he “was respectful, demand[ing] of excellence in our work, cordial, professional, interested in our lives and our career ambitions.”

All of these witnesses, when asked directly by senators while under oath whether it was even possible to believe Hill’s charges against Thomas, said with one accord that it was “impossible to believe” what she alleged.  They worked with both Thomas and Hill, in constant contact with both of them, and denied utterly that Thomas ever acted improperly.

No one on Anita Hill’s side has ever produced testimony this direct, relevant, unequivocal, and probative, from persons in a position actually to know what transpired between them in the workplace.  (If you want to read their testimony for yourself, go to this page at the Law Library of Congress, download Part 4 of the Thomas hearing transcripts, and start at page 337.)

But Ruth Marcus has evidently forgotten the names of Alvarez, Fitch, Holt, and Berry-Myers.  Shame on her.

She’s No More Convincing Today


Earlier today Kathryn noted Anita Hill’s NYT op-ed complaining that Justice Thomas has maligned her in his new book.  James Taranto’s “Best of the Web Today” at OpinionJournal has an effective demolition of Hill’s article.

Santa Clara and Stanford Law School Events


Calabresi on Originalism


In an excellent Wall Street Journal op-ed today (subscription required), law professor Steven G. Calabresi cogently explains why “we all ought to hope that the Roberts Court and the justices appointed by the next president will be originalists.”  As Calabresi points out, although the label “originalism” may seem unfamiliar, “the long-accepted rule for interpreting legal texts is to construe them to have the original public meaning that they had when they were enacted into law.  This is the way we interpret statutes, contracts, wills, and even old Supreme Court opinions.”  The same rule of originalism, he continues, should also govern interpretation of the Constitution.  (My own simple test to show you that you, like it or not, are an originalist is here.) 


Calabresi, co-founder of the Federalist Society, is also editor of the new book Originalism: A Quarter Century of Debate, an outstanding compilation of speeches (both for and against) about originalism and debates over it.  Anyone interested in thinking more deeply about originalism will want to read this book.

Tags: Whelan


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