On Reading Cases, Ctd.

February 21, 2012

letterstomycountry:

squashed replied to your post: Personal Notes: On Reading Cases
And when it’s a Thomas opinion, I close the book. Because Thomas’s opinions are written terribly. Scalia was at least witty.

Thomas is horrible 99% of the time. But he is actually fairly lucid when he’s writing…

I’m not going to address Affirmative Action on the whole as theory or practice but I am sympathetic to your unease in finding yourself nodding along to Justice Thomas. I had the similar and unfortunate experience last week while reviewing my Con Law readings. His Grutter dissent is actually a stirring revival of the important and beautiful colorblind interpretation the Equal Protection Clause as well as a reality check on how lax the Court can be with the second prong of the Strict Scrutiny inquiry. I admit, I felt fairly strange telling a friend after class that I was both the President of my law school’s ACLU and (temporarily) in agreeance with Justice Thomas.

Shudder.

Thankfully this sympathy for the (originalist) devil(s) didn’t last too long. This morning I draw caricatures of Scalia sobbing like a baby in the margins of his particularly histrionic United States v. Virginia (1996) dissent. D: < Scalia

Anywho, relevant news is relevant: New York Times - Supreme Court Agrees to Hear Affirmative Action Case

LTMC: if you ever want a reason to hate Justice Scalia, just read Whren v. United States, any case involving the Establishment Clause, or his 8th Amendment jurisprudence, which can be summed up in the following churlish phrase:

“No Proportionality principle lolol” - J. Scalia

That being said, Scalia’s approach to the doctrine of lenity, and his 6th Amendment jurisprudence are both, and I hate to say it…excellent. His interpretation of the Confrontation Clause has saved many a defendant from out-of-court testimony, and his approach to lenity, while sadly not the majority view, nonetheless grants criminal defendants a favorable presumption when the meaning of a criminal statute is unclear or ambiguous. His hard-on for English Common-law as a barometer for original intent is a liability more often than not, but occasionally it leads to good legal precedent. Occasionally.

2:43pm | URL: http://tmblr.co/ZMMjnxGoCoEg

(Notes: 10)