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September 14, 2005
If He's Working from the Bottom Up, What Are His Tools?
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Edward Lazarus, a lawyer in private practice, is author of "Closed Chambers: The Rise, Fall and Future of the Modern Supreme Court." |
Roberts has masterfully avoided answering any tough questions, hiding behind a Ginsburg non-precedent that also makes little analytic sense. Meanwhile, Democrats have done a pathetic job pushing him on this point. Roberts' repudiation of the jurisprudence of original intent was welcome, but it raises the following question: Roberts says that he has no overarching judicial philosophy and that he's a "bottom-up," pragmatist judge. But how does Roberts go about deciding which interpretive tools to use in which types of cases?
One of the most troubling aspects of the modern court has been the way some justices pick whatever interpretive tool just happens to get them to the result they want to reach rather than using consistent methods of interpretation even when they lead to results that the justice might not favor as a matter of policy. It would be nice if Roberts would address this potentially significant problem. That said, Roberts has provided Democrats with little basis for rejecting him on ideological grounds and considerable reassurance that, while very conservative, he would make a thoughtful Chief who understands the importance of providing compelling justifications for the exercise of anti-democratic judicial power.
Posted at September 14, 2005 04:39 PM
Comments
Interesting point.
The issue of the "interpretive tool" touches, too, on the debate between "science" and the "bible," for example. This seems to be a highly significant point.
Could you please provide an overview of the categories of legal interpretive tools?
Also, could you please, then, associate each category with its philisophical foundation.
Finally, could you provide the name(s) of one or two books or websites where I could find more information?
Thank you VERY MUCH for this wonderful blog.
Posted by: Sandy at September 15, 2005 09:42 AM