No doubt when a textual pretext was available for his reactionary opinions, Scalia would use it. He was also happy to use non-textual pretexts on other occasions, which is why he is a fraud. -raghu.
This is circular reasoning without any substantiation. This should not be complicated. William Brennan, for example, was result oriented. Brennan knew how he wanted to come out, and he did his best to come up with a reason for his opinion. He had no predisposition judicial methodology that restrained his decision-making. Scalia is different – he has an explicit judicial methodology by which he can be judged. There are four conceptual criticisms of Scalia: (1) textualism is impossible, because the text is always indeterminate, (2) textualism is possible, but the text should be trumped by higher criteria, such as democracy or evolving standards, (3) textualism is the correct methodology, but Scalia was not very good at it, and (4) textualism is the correct methodology, but Scalia would vary from it whenever textualism produced a result he did not like. In serious legal circles, as opposed to the Pen-L list, the 4th criticism is the weakest, which is why Scalia received accolades from across the political spectrum. It is exceedingly difficult to find a case where there is a consensus that Scalia reached a result that knowingly (or even unknowingly) varied from the obviously correct textualist answer. You may not want to accept it, but Heller and Citizens United were textualist opinions consistent with his judicial methodology, so keep looking for an example that supports your opinion. David Shemano ____________________________________________________ Information contained in this e-mail transmission may be privileged, confidential and covered by the Electronic Communications Privacy Act, 18 U.S.C. Sections 2510-2521. If you are not the intended recipient, do not read, distribute, or reproduce this transmission. If you have received this e-mail transmission in error, please notify us immediately of the error by return email and please delete the message from your system. Pursuant to requirements related to practice before the U. S. Internal Revenue Service, any tax advice contained in this communication (including any attachments) is not intended to be used, and cannot be used, for purposes of (i) avoiding penalties imposed under the U. S. Internal Revenue Code or (ii) promoting, marketing or recommending to another person any tax-related matter. Thank you in advance for your cooperation. Robins Kaplan LLP http://www.robinskaplan.com ____________________________________________________
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