The Corner

Law & the Courts

Judge Barrett vs. Legal Canards

In 1989, Justice Antonin Scalia delivered an excellent talk on “Assorted Canards of Contemporary Legal Analysis.” Thirty years later, Judge Amy Coney Barrett, a former clerk of his, has followed in his footsteps, lining up her own canards for a speech in the same lecture series. It has just been published. It is a worthy successor to Scalia’s speech in substance, and wisely does not try to mimic him in style.

I think she is too dismissive, however, of the phrase “judicial activism.” It’s true that merely labeling a judge or judicial decision as “activist” tells us no more than that the labeler disagrees; and it is true as well that the phrase can be used in unconvincing ways, as a way of avoiding making an argument, or both. But both points are true of many other phrases that are not therefore meaningless: Compare, for example, “judicial misconduct.” Such phrases state conclusions rather than premises and do no analytical work in getting from the former to the latter; and that’s how they’re generally used.

Ramesh Ponnuru is a senior editor for National Review, a columnist for Bloomberg Opinion, a visiting fellow at the American Enterprise Institute, and a senior fellow at the National Review Institute.

Most Popular

U.S.

Systemic Racism? Make Them Prove It.

I  worked in the criminal-justice system for a quarter century. It is run, day-to-day, by the crème de la crème of graduates from America’s top law schools. Those institutions wear their progressive bona fides on their sleeves and proclaim it for all the world to hear. In their offhand rhetoric — ... Read More
U.S.

Systemic Racism? Make Them Prove It.

I  worked in the criminal-justice system for a quarter century. It is run, day-to-day, by the crème de la crème of graduates from America’s top law schools. Those institutions wear their progressive bona fides on their sleeves and proclaim it for all the world to hear. In their offhand rhetoric — ... Read More