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Missing Canons of Construction in Ali v. Federal Bureau of Prisons?

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2 Responses

  1. Mike O'Shea says:

    Good post. Very interesting issues, especially for those of us who eagerly seek clues about the two new Justices’ approaches to statutory interpretation.

    My early sense is that Chief Justice Roberts is closer to the self-conscious, formal textualism of Scalia, Thomas and Easterbrook than is Justice Alito. Check out the Zuni case, last Term’s big textualism smackdown, with Roberts joining Scalia, Thomas, and (bravo!) Souter in dissent. Justice Breyer wrote a very un-textualist majority opinion — in which Kennedy and Alito concurred with some reservations.

    Here, though, Alito’s qualm about the effect of the word choice “detention” is quite consistent with textualism, and I think he was right to express some frustration that the petitioner didn’t press this point below. Notice Justice Stevens cannily swooping in to reinforce Alito’s concerns at this point.