Refusing to opine on the relevant question is the behavior of a judge who dons the robe of a textualist only when that approach derives the desired outcome. Textbook hypocrisy.
No, Justices usually don't reach questions unless they need to in order to resolve the case before them. I don't think you read either the opinions (or have ever read an opinion?), or this newsletter itself. That'd certainly explain the puzzling assertions.
Apparently we are not reading either the same newsletter or the same opinions. I would never suggest that the three justices are stupid. To the contrary. They are highly intelligent and exceptionally skilled at arguing. That's why they are able to craft a rationale for ignoring the relevant issue. But frankly "that's not the question we were asked", "it's not our job to advocate the plaintiff's position" and "nobody has given us briefs on this" is akin to the retort of clever debate student who knows they are on the losing end of an argument. Mr. Unikowsky explicitly addresses this in his write up. He takes the lawyerly approach of analyzing their arguments. I simply take his lawyerly analysis to its logical conclusion. When textualism doesn't get them the outcome they like, they skip the question.
Thanks for the substantive reply. If they really thought that the preliminary questions they raised (e.g. party presentation principle) were dispositive, they were right to then not address questions that were not necessary for them to resolve in order to grant/deny the stay. But, now I do see your point that those questions were pretextual.
Completely agree with everything you wrote. I really like the babysitter analogy; I was in two minds initially but that convinced me about the ordinary meaning cf the literal, mathematical one
This is all very well-reasoned, although I think (as your last paragraph suggests), the hard question for textualism as a philosophy distinct from other philosophies of statutory interpretation is not what to do when the answer pops out from the statute but instead what to do when it does not, and specifically whether to resort to background principles and canons that go substantially beyond the babysitter rule.
In any event, this case suggests an even simpler and more administrable approach: At least in cases involving executive power, where there is an amicus brief from Marty Lederman, the Court should do what Marty Lederman says. This may not technically be a neutral rule, and it leaves the district and circuit courts in a tough spot unless Marty starts writing a really impressive number of briefs, but its obvious merits outweigh those minor flaws.
I googled the Posse Comitatus Act and their house AI had this to say: “The [Posse Commitatus] Act applies to the Guard only when they are ‘federalized’ (under Presidential command); when under a governor's command (state active duty), they are generally exempt.” Regrettably, there’s no citation, but I think it’s the correct answer. So I would not have reached the “regular forces” argument unless I had to to get to five.
A real life balls and strikes example.
I think it does call into question the extent to which the 3 dissenting justices are truly, as they are commonly viewed, textualists.
Agree, although I’d suggest that it confirms that the 3 are not.
No, it does not. Read their opinions. As Adam himself says it was "6-0", because those 3 did not opine on the relevant question.
Refusing to opine on the relevant question is the behavior of a judge who dons the robe of a textualist only when that approach derives the desired outcome. Textbook hypocrisy.
No, Justices usually don't reach questions unless they need to in order to resolve the case before them. I don't think you read either the opinions (or have ever read an opinion?), or this newsletter itself. That'd certainly explain the puzzling assertions.
Apparently we are not reading either the same newsletter or the same opinions. I would never suggest that the three justices are stupid. To the contrary. They are highly intelligent and exceptionally skilled at arguing. That's why they are able to craft a rationale for ignoring the relevant issue. But frankly "that's not the question we were asked", "it's not our job to advocate the plaintiff's position" and "nobody has given us briefs on this" is akin to the retort of clever debate student who knows they are on the losing end of an argument. Mr. Unikowsky explicitly addresses this in his write up. He takes the lawyerly approach of analyzing their arguments. I simply take his lawyerly analysis to its logical conclusion. When textualism doesn't get them the outcome they like, they skip the question.
Thanks for the substantive reply. If they really thought that the preliminary questions they raised (e.g. party presentation principle) were dispositive, they were right to then not address questions that were not necessary for them to resolve in order to grant/deny the stay. But, now I do see your point that those questions were pretextual.
Completely agree with everything you wrote. I really like the babysitter analogy; I was in two minds initially but that convinced me about the ordinary meaning cf the literal, mathematical one
This is all very well-reasoned, although I think (as your last paragraph suggests), the hard question for textualism as a philosophy distinct from other philosophies of statutory interpretation is not what to do when the answer pops out from the statute but instead what to do when it does not, and specifically whether to resort to background principles and canons that go substantially beyond the babysitter rule.
In any event, this case suggests an even simpler and more administrable approach: At least in cases involving executive power, where there is an amicus brief from Marty Lederman, the Court should do what Marty Lederman says. This may not technically be a neutral rule, and it leaves the district and circuit courts in a tough spot unless Marty starts writing a really impressive number of briefs, but its obvious merits outweigh those minor flaws.
> As you might guess from the admirably spare prose, this law is old.
When and why did such elegant, precise construction go out of fashion?
I googled the Posse Comitatus Act and their house AI had this to say: “The [Posse Commitatus] Act applies to the Guard only when they are ‘federalized’ (under Presidential command); when under a governor's command (state active duty), they are generally exempt.” Regrettably, there’s no citation, but I think it’s the correct answer. So I would not have reached the “regular forces” argument unless I had to to get to five.
Textualism makes sense as Adam explains here. Appreciated.