“Picking the man and then searching the law books”

Two weeks ago, the Justice Department issued a public notice inviting applicants “‘to refer anyone who had any information’ that might build a case against [George] Zimmerman for either a civil rights violation or a hate crime.”  It reminded me of something in Justice Antonin Scalia’s dissent in Morrison v. Olson, 487 U.S. 654 (1988),…

The judge as moral philosopher

Reviewing Supreme Court Justice Antonin Scalia and Bryan A. Garner’s Reading Law: The Interpretation of Legal Texts in the Claremont Review of Books, David Forte exposes Justice Scalia’s famous legal positivism as moral philosophy by another name.  “They call false,” Forte writes of Scalia and Garner, “the ‘notion that the quest in statutory interpretation is to do justice,’” and they, like Alexander Hamilton, prefer judges to be “‘bound down by strict rules and precedents.”  But judging, Forte pushes back, is […]

How I would have written Scalia’s dissent

Troy Davis, originally convicted of murdering an off-duty cop under questionable circumstances, will now have his case reviewed by order of the Supreme Court. Justice Scalia dissented, however, and his opinion isn’t exactly a model of human empathy: “This court,” Scalia pointed out, “has never held that the Constitution forbids the execution of a convicted…