Litigation » Originalism Critiqued In New Book

Originalism Critiqued In New Book

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August 23, 2018

Since the death of Supreme Court Justice Antonin Scalia, his colleague Clarence Thomas has often been cited as the thought leader of the high court. Recently, Linda Greenhouse of the New York Times wrote that Thomas, whose legal theories were considered laughable when he was appointed, is the Justice whose view now defines how jurisprudence is evolving after nearly three decades of ultra-conservative domination. But a new book, Originalism on Trial, by law professor Richard L. Hasen, which is generally critical of the theory that allegedly guides both Justices’ opinions, claims Scalia should be considered “the most influential justice of the past two generations.” Unlike the taciturn Thomas, Hasen calls Scalia “a gregarious public intellectual, conservative, brilliant, and loud.” President Trump has declared Scalia to be his model for appointees, a standard Trump employed when he chose Scalia’s successor, Neil Gorsuch (“Think Scalia, but without the spontaneous wit and charm,” Hasen writes). All three Justices, in Hasan’s opinion, torture the doctrine of “original intent” to fit their extreme right philosophy, throw in the concept of congressional intent whenever it jibes with their view, then ignore it when it doesn’t.

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