This is simply wrong. I am an advocate of noble lies as much as anybody. Obama saying he was against same sex marriage in 2008 was masterful. But the philosophical issue of legal interpretation (or interpretation more generally) is not a matter of duplicity to effectuate political goals. Views of interpretation may certainly have political consequence, but that is far different than saying a view of interpretation is an intentional façade to facilitate political goals. Scalia is explicit that his philosophy – textualism – is a restraint on the discretion of the judge, including a “conservative” judge. The fact that Scalia, an actual imperfect human being, arguably (and I stress arguably) occasionally failed his own test is (a) not evidence of duplicity, and (b) not evidence the philosophy is wrong. The philosophy succeeds or fails on its own merits. If Scalia was motivated to advance conservative goals without restraint, then he would presumably be better off pretending to agree philosophically with the liberal judges, who use textualism when it supports the result they want to reach, but disregard it when they don’t. This goes back to my very first post – if you reject originalism, then you are really rejecting judicial restraint more generally, and so if you reject judicial restraint more generally, on what basis can you credibly criticize Scalia on judicial grounds (the opinion varied from textualism to reach a goal) as opposed to political grounds (you simply don’t like the result of his decisions)?
But again, if you want to take the position that the concept of judicial restraint is a fantasy, that the exercise of judicial power is no different than the exercise of executive or legislative power, and further that any judge that thinks he is exercising restraint is fooling himself, that is a legitimate philosophical position, but understand Scalia disagrees with you, and he disagrees not because he doesn’t understand you, but because he understands you and still disagrees with you. David Shemano From: [email protected] [mailto:[email protected]] On Behalf Of raghu Sent: Thursday, February 25, 2016 8:07 AM To: Progressive Economics Subject: Re: [Pen-l] Posner on Scalia via David Shemano On Wed, Feb 24, 2016 at 7:14 PM, Tom Walker <[email protected]<mailto:[email protected]>> wrote: I liked the Posner article because it confirmed my bias, which is precisely why a Scalia fan wouldn't like it. My bias is based on the suggestion in much political philosophy of the usefulness to the statesman, prince, legislator or courtier (or judge?) of duplicity (Machiavelli, Castiglione, Gracian... more recently Leo Strauss). And let's not forget Adam Smith Indeed and I'd also point out that there is a meta aspect to this: Shemano (and Scalia) are/were employing precisely this kind of duplicity in making the argument for textualism as a coherent and objective legal theory. -raghu. ____________________________________________________ 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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