Skip to comments.Elena Kagan: The Supreme Court Adopted Scalia’s Textualist Judicial Reasoning
Posted on 10/19/2017 11:14:24 AM PDT by Sopater
Supreme Court Justice Elena Kagan said Monday the high court has adopted much of the late Justice Antonin Scalia's textualist judicial reasoning.
Kagan was speaking to an audience at the Chicago-Kent College of Law when she said that Scalia's judicial reasoning has come to dominate the court, the Washington Examiner reported.
Scalia, who sat on the Supreme Court for 30 years before his death in 2016, was a proponent of textualism, a theory in which the interpretation of law is based on the meaning of legal text as it would be commonly understood at the time of its passage, and does not consider other factors like the law's intention when passed.
"In their full context, words mean what they conveyed to reasonable people at the time they were writtenwith the understanding that general terms may embrace later technological innovations," Scalia and co-author Bryan Garner wrote of textualism in their 2012 book Reading Law.
Kagan explained that she believes the high court has two poles of judicial interpretationScalia and his strict textualism on one end, and Justice Stephen Breyer, who emphasizes a law's purpose and its real-world outcomes, on the other.
Kagan said the court as a whole is much closer to Scalia's viewpoint.
"I think, for the most part, we are within those poles but much closer to the Scalia pole: That we are a generally, fairly textualist court, which will generally think when the statute is clear you go with the statute," Kagan said. "Pretty much all of us now look at the text first and the text is what matters most."
"And if you can find clarity in the text that's pretty much the end of the ballgame," she continued. "Often texts are not clear, you have to look [farther]."
Former President Barack Obama nominated Kagan to the Supreme Court in 2010 to replace Justice John Paul Stevens. Before being named to the high court, Kagan served as the country's first female solicitor general, the person who represents the U.S. government in cases before the Supreme Court.
Kagan and Scalia had a friendship outside of the court. During her confirmation process, Kagan invited herself to one of Scalia's hunting trips to better understand guns and proponents of the Second Amendment. Scalia took Kagan to his gun club, where she learned gun safety. After she was ready, the two would go on hunting trips that allowed their friendship to grow.
"He was as generous and warm and funny as a person could be. I just so appreciate all the time I got to spend with him," Kagan said six months after Scalia's death. "I miss him a lot."
Interesting piece. Thanks.
This is a real good start.
One of the men at my church is a well known attorney and overall brilliant guy. He was talking a few weeks ago about some case where he said he spent hours reviewing the law. He said it came down to one word.
The word was “may.” He said if the law read “Shall” he would have won his case, but since it said “may,” try as he might he was stuck.
I think that’s a good example of textualism.
“And if you can find clarity in the text that’s pretty much the end of the ballgame,” she continued. “Often texts are not clear, you have to look [farther].”
And the last sentence is very telling in that liberals will often reach their opinion by “looking farther” - IOW, loose interpretation of the laws to suit a political agenda.
The timing of his demise, during an administration deeply opposed to “textualism”, is ... interesting.
As in the Constitution means what it says?
“Textualist” as opposed to .....(???)
where was kagan when scalia was... er, found.
I wish she would have elaborated more, because I do not see this from the court. Of course, if she merely means interpreting STATUTES literally, then maybe she is right.
If she means the CONSTITUTION, then I disagree. Is there a transcript of her speech?
I know, what a concept. The text means what it says in actual, y’know, words.
I mean, is that even legal?
Text isn’t dead, it is a proxy for ideas. And ideas convey truth.
So how does she explain her vote for homosexual marriage? The text of the laws on marriage was clear. Marriage had a definition, a clear definition. Yet she and her liberal cohorts decided we have to go beyond what marriage laws said, and decided that we should change the definition of marriage.
So how can she claim that textualist theory drives decision making, when at least in that case, the driving force was the desire to impose homosexual marriage, regardless of what the law said????
Yeah, right. The Constitution now says whatever the hell five out of nine Supreme Court Justices want it to say at any time.
Let's eat, grandma.
Let's eat grandma.
Until the people have, by some solemn and authoritative act, annulled or changed the established form, it is binding upon them collectively, as well as individually; and no presumption or even knowledge of their sentiments, can warrant their representatives [the executive, judiciary, or legislature]; in a departure from it prior to such an act. Alexander Hamilton
On every question of construction [of the Constitution] let us carry ourselves back to the time when the Constitution was adopted, recollect the spirit manifested in the debates, and instead of trying what meaning may be squeezed out of the text, or intended against it, conform to the probable one in which it was passed. - Thomas Jefferson
Should they include "penumbras" which hint at the scope of the law? Or should they simply write down the words which people and judges can understand, now and in the future?
Seems somewhat sad to have to praise Scalia for doing that which should be so obvious.
The Law. Hmm-hmm.
I read somewhere that it Kagan was a personal friend of scalia’s. Maybe he has had some influence on her. Maybe we can hope
Breyer, Ginsberg, Kagan and Sotomayor are often guilty of textual assault on America.
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