Judge Posner Skewers Textualism-Originalism (Thomas, Scalia), And Reveals the Increasing Politicization of Judging by Conservatives

Judge Posner Skewers Textualism-​​Originalism (Thomas, Scalia), And Reveals the Increasing Politicization of Judging by Conservatives from Brian Tamanaha at Balkinization, quot­ing from Judge Posner’s new book, How Judges Think:

This polit­i­cally con­ser­v­a­tive response (“orig­i­nal­ism” or “textualism-originalism”) — which under dif­fer­ent con­di­tions could be a lib­eral response but is more con­ge­nial to con­ser­v­a­tives because of its evo­ca­tion of an era more cul­tur­ally con­ser­v­a­tive than today — illus­trates a more gen­eral ten­dency of judges to reach back­ward for the grounds of their deci­sion. By doing so they can if chal­lenged claim to be employ­ing a dif­fer­ent method­ol­ogy that involves deriv­ing con­clu­sions from premises by log­i­cal oper­a­tions as dis­tinct from bas­ing action on a com­par­i­son of the social or polit­i­cal con­se­quences of dif­fer­ent pos­si­ble out­comes. But the back­ward ori­en­ta­tion actu­ally enlarges a judge’s leg­isla­tive scope, and not only by con­ceal­ing that he is leg­is­lat­ing. A judge or Justice who is out of step with cur­rent prece­dents reaches back to some ear­lier body of case law (or con­sti­tu­tional text) that he can describe as the bedrock, the authen­tic Ur text that should guide deci­sion. And the older the bedrock, the greater the scope for manip­u­la­tion of mean­ing in the name of his­tor­i­cal recon­struc­tion or intel­lec­tual archeology . …

For more on Judge Posner, see:

• Richard Posner on Wikipedia
• The Becker-​​Posner Blog
• Other books from Google Books