Comments on: Justice Redux: The Impact of the Same Justice Writing on the Same Issue Years Later http://www.concurringopinions.com/archives/2008/02/justice_redux_t.html The Law, the Universe, and Everything Tue, 14 Feb 2012 05:18:12 +0000 hourly 1 http://wordpress.org/?v=3.2.1 By: Chris http://www.concurringopinions.com/archives/2008/02/justice_redux_t.html/comment-page-1#comment-50238 Chris Thu, 21 Feb 2008 06:51:36 +0000 http://www.solove.org/archives/2008/02/justice-redux-the-impact-of-the-same-justice-writing-on-the-same-issue-years-later.html#comment-50238 The fact that judicial opinions have multiple authors puts a premium on text, as I see it. If it's not in the opinion, then it didn't get 5 votes. When we have multiple-member bodies saying things, the distinction between textualism and intentionalism collapses, I think, because what the body "intends" is limited to what's expressed in the text the members adopt. Same goes for statutes and constitutional provisions. The fact that judicial opinions have multiple authors puts a premium on text, as I see it. If it’s not in the opinion, then it didn’t get 5 votes. When we have multiple-member bodies saying things, the distinction between textualism and intentionalism collapses, I think, because what the body “intends” is limited to what’s expressed in the text the members adopt. Same goes for statutes and constitutional provisions.

]]> By: Mike O'Shea http://www.concurringopinions.com/archives/2008/02/justice_redux_t.html/comment-page-1#comment-50237 Mike O'Shea Thu, 21 Feb 2008 05:47:00 +0000 http://www.solove.org/archives/2008/02/justice-redux-the-impact-of-the-same-justice-writing-on-the-same-issue-years-later.html#comment-50237 Right, this post's not about ERISA; it's about textualism vs. intentionalism in interpreting judicial opinions rather than statutes. Few expected Justice Alito to be a strict textualist when it came to statutory interpretation, and so far he hasn't been. (See, e.g., <i>Zuni</i> last Term.) It's plausible to think that a Justice would bring a similar attitude to both kinds of written public law, legislative and decisional. Conversely, you'd expect the formalist Scalia to think the identity of an opinion's author shouldn't usually affect its interpretation. "The decision" is the outcome plus the original public meaning of the opinion's text. (Subject to the familiar distinction between dictum and ratio decidendi.) Right, this post’s not about ERISA; it’s about textualism vs. intentionalism in interpreting judicial opinions rather than statutes.

Few expected Justice Alito to be a strict textualist when it came to statutory interpretation, and so far he hasn’t been. (See, e.g., Zuni last Term.) It’s plausible to think that a Justice would bring a similar attitude to both kinds of written public law, legislative and decisional.

Conversely, you’d expect the formalist Scalia to think the identity of an opinion’s author shouldn’t usually affect its interpretation. “The decision” is the outcome plus the original public meaning of the opinion’s text. (Subject to the familiar distinction between dictum and ratio decidendi.)

]]> By: Michael Froomkin http://www.concurringopinions.com/archives/2008/02/justice_redux_t.html/comment-page-1#comment-50236 Michael Froomkin Thu, 21 Feb 2008 01:42:40 +0000 http://www.solove.org/archives/2008/02/justice-redux-the-impact-of-the-same-justice-writing-on-the-same-issue-years-later.html#comment-50236 A famous counter-example: Scalia complaining about what Stevens said his own Chevron decision meant in scalia's concurrence in Immigration and Naturalization Service v Cardozo-Fonseca, 480 US 421, 452-53 (1987) ("unjustifiable, however, is the Court's use of this superfluous discussion as the occasion to express controversial, and I believe erroneous, views on the meaning of this Court's decision in Chevron"). A famous counter-example: Scalia complaining about what Stevens said his own Chevron decision meant in scalia’s concurrence in Immigration and Naturalization Service v Cardozo-Fonseca, 480 US 421, 452-53 (1987) (“unjustifiable, however, is the Court’s use of this superfluous discussion as the occasion to express controversial, and I believe erroneous, views on the meaning of this Court’s decision in Chevron”).

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