WELCOME TO THE OFFICIAL RICHARD E GERSTEIN JUSTICE BUILDING BLOG. THIS BLOG IS DEDICATED TO JUSTICE BUILDING RUMOR, HUMOR, AND A DISCUSSION ABOUT AND BETWEEN THE JUDGES, LAWYERS AND THE DEDICATED SUPPORT STAFF, CLERKS, COURT REPORTERS, AND CORRECTIONAL OFFICERS WHO LABOR IN THE WORLD OF MIAMI'S CRIMINAL JUSTICE. THIS BLOG HAS BEEN CALLED "THE DEFINITIVE BLOG ON MIAMI CRIMINAL LAW" BY THE NY TIMES, THE WASHINGTON POST, THE POPE, AND DONALD TRUMP WHO ALSO ONCE SAID IT WAS "REALLY GREAT". POST YOUR COMMENTS, OR SEND RUMPOLE A PRIVATE EMAIL AT HOWARDROARK21@GMAIL.COM

Tuesday, May 12, 2009

SCALIA UNLEASHED.

The most engaging, interesting and perhaps (just perhaps) the brightest of the Supreme Court Justices  recently let loose in a talk at the American University's College of Law. 

The title links to the Time's article. 

Here's something even our favourite federal blogger will like: Scalia on Hahvad:

“By and large,” he said, “I’m going to be picking from the law schools that basically are the hardest to get into. They admit the best and the brightest, and they may not teach very well (Rumpole wails: "say it an't so Mr. Markus", but you can’t make a sow’s ear out of a silk purse. If they come in the best and the brightest, they’re probably going to leave the best and the brightest, O.K.?”

So which is it David: Silk purse or sow's ear? (ps. we know we're  a "know nothing peon"  who did not go to a "best and brightest" law school. But, uh, isn't the phrase "make a silk  purse out of a sow's ear" and not the reverse ? Just wonderin...)


In response to another question, Justice Scalia made a point about how he interprets statutes. He used an opinion by Justice Stevens in an important administrative law case, Chevron v. Natural Resources Defense Council, to explain why he believed that comments from legislators were irrelevant in figuring out what statutes meant.

“Do I have to defer to John Paul Stevens because he’s the author?” Justice Scalia asked. “ ‘Oh, John, you wrote Chevron. You must know what it means.’ Of course not! John doesn’t know what it means! Once you let loose the judicial opinion, John, it has a life of its own, and it means what it says.”

“Now why should legislation be any different?” Justice Scalia added. “Once Congress floats that text out there, it has its own life. It means what it means. It means what it says.


Hmm...the authors of a law don't know what they wrote. "It means what it means" says Nino.

 Hmm...what those who wrote it think it means - that means nothing.

Hmmm....sort of puts a dent in "original interpretation" huh? 

But what do we know? We didn't pahk our cah in the Havahd yahd. *



9 comments:

Anonymous said...

uh, Rump, I love you, but I think you missed this one. Sow's ear and silk purse were reversed... and that was the point.

Anonymous said...

I think that the best replacement for Souter would be Rush Limbaugh and if not him personally than we should follow his advice on who is and is not qualified for the job.

David Oscar Markus said...

Stop drinking the haterade. And anyway, who the hell knows what a soe's ear is?

David Oscar Markus said...

And yes, that was a typo -- SOW what.

Rumpole said...

I'm in trial and I have to go to the bathroom to post comments on the blog and THIS ...this is the best you've got?

How'd you get into Harvard anyway?

CAPTAIN said...

THE CAPTAIN REPORTS:

BREAKING NEWS .....

Liberty City Six - 5 CONVICTED, I ACQUITTED

Cap Out .........

South Florida Lawyers said...

David, it's called Ivy Envy.

CAPTAIN said...

Congratulations to attorney Richard Houlihan on the acquittal of his client in the Liberty City 6/7 case.

Cap Out .....

The Professor said...

Rump,

You're wrong about Scalia contradicting himself when you say "sort of puts a dent in original interpretation?" There are two strands of originalists. The first looks at the "original intent" of the drafters of statutes or constitutional provisions. Adherents to this style look to comments made by legislators, etc. to discern what those people intended. The problem with that is who's to say that ONE senator speaks for all 100?

The second strain of originalists focus on the "original MEANING" of a statute or constitutional provision. These originalists could care less what members of the legislature said because the issue is to discern what the original intent of the LANGUAGE of the statute was. These originalists tend to look at the historical context at the time a statute was enacted, including what a reasonable person in that context would have thought the statute was meant to do.

Scalia falls into this latter category. He is primarily a textualist, and when it comes to originalism he looks for the original meaning of the words of the statute. For instance, to determine whether FERPA was intended to create a cause of action, he would point to the fact that: (1) the statute does not explicitly state that it creates a cause of action; and (2) the historical context at the time shows that no one thought FERPA was providing a right to sue in federal court.

So, his statements are completely consistent with his originalism and textualism.

I hope this provides good bathroom reading.