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Legal News

: Lawbeat

A justice's speech falls in a forest

By Mark Obbie

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This is wild: A Supreme Court justice talks about judicial philosophy, with comments on a recent landmark decision. He makes his speech at a politically flavored public event. And yet the SCOTUS press corps is practically silent, as best I can tell. Last night, Justice Samuel Alito was the keynote speaker at The American Spectator's annual Robert L. Bartley Gala. According to the AP's Mark Sherman and Politico's Alexander Burns, the only news to come from Alito's appearance were some rather vague and only mildly naughty jabs at Vice President-elect Joe Biden, who tormented Alito during his Supreme Court confirmation hearings. The rest, Burns sniffed, was an "otherwise dry legal discourse." But at least they wrote something. I found no other news reports. Not even The American Spectator bothered to document it yet. Here's what Robert VerBruggen wrote at National Review's Bench Memos blog:

I thought his most interesting remarks had to do with how the Supreme Court is increasingly returning to Blackstone's "text first" method of interpreting laws — before trying to imagine what legislators might have had in mind, and before implementing their own policy preferences, judges should read the law and apply the plain language to the situation at hand. Only if the language is unclear, or if the meanings of words have changed over time, should judges move on to other methods of interpretation.He had two examples, an anecdote and a statistic, to back this up. The anecdote was that in the Second Amendment case D.C. v. Heller, both the majority opinion and the dissent were originalist; both took the language of the law and asked what those words meant at the time they were written. The statistic was that in recent years (I forget the exact time frame), judges have used dictionary definitions more often than they have through the entire history of the court.

Doesn't that deserve some thoughtful, deeper news coverage? True, it doesn't sound as though Alito broke particularly new ground. But policy and philosophy statements by justices are still rare enough that we ought to know what they say.

Full post as published by Lawbeat on December 04, 2008 (boomark / email).