The second book is “Reading Law: The Interpretation of Legal Texts.”
There's also this from Garner:
“I have it on good authority,” he conceded in one peek under the robes, “that when appellants to the U.S. Supreme Court spend eighty per cent of their time looking at Justice Kennedy,” who has gained a reputation as the divided Court’s swing vote, “it’s annoying.” He waited a beat. “To the others.”To Scalia. And now — after the Obamacare case — he'll have to put up with lawyers looking at Roberts.
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I'll buy the book the moment that they put out a kindle edition, or when a third glass of wine sufficiently dulls my resistance to the $50 price tag. Truth be told, people who spend years following Scalia's jurisprudence closely probably know what's in this volume, but it makes me glad to see that Scalia finally got it down in what amounts to a treatise. Ball's in your court, Easterbrook!
Transcript of their Conversation after the Obamacare decision:
Garner: Hey, Duce, how are you?
Scalia: Meh...
Garner: Down about the A.C.A. decision?
Scalia: Meh...
Garner: Can I ask you something, Duce?
Scalia: Yeah, go ahead.
Garner: You have any regrets about your decision in Raich?
Scalia: Fuck it!
Garner: Huh?
Scalia: Fuck it! I've have enough of this kow-towing to the centrist of the moment. First Kennedy. And now this... this... KID!
Garner: I understand you are upset, Duce, but...
Scalia [interrupting]: You know, Bryan, what the real Scotsmen wear under their kilts?
Garner: Nothing, I hear.
Scalia: That's right. And from now on, I'm going commando under my robe.
Garner: Duce, I think you might be going too far.
Scalia: If little Johnny is gonna wiggle through with tricky nuanced maneuvers like that, then... well, Bryan... well... then I suggest you henceforth refrain from peeking under the robes!
...
Scalia: I'll bet I can get Clarence to go along with me on this too...
"To Scalia. And now — after the Obamacare case — he'll have to put up with lawyers looking at Roberts."
To whom, quite obviously, words have no meaning.
Since, after all, nearly all impositions of government function as a tax, regardless of what they are called.
"John Roberts' decision might be seen in time as a great statement on the role of a judge."
Indeed.
The ability of a judge to find words that do not exist in the law in question, and the ability to imbue meaning based upon "functionality."
In which case, Roe v. Wade become becomes even more complicated, because abortion is functionally murder: premeditated killing, except in those cases were it wasn't premeditated.
Maybe that's where Roberts was going with this?
Ann, far be it for me to question your tags, but it is criminal that this post does not have a David Foster Wallace tag.
Secondly, you need to create a new tag if you don't already have the tag: "articles that upon first reading are so obviously going to be blogged about by Ann Althouse that you practically don't even have to click over to her blog to confirm."
That may need some editing, but that's the thought I had the moment I bumped into this article via the New Yorker's Twitter feed. And I know I've had that feeling before, and been right.
Scalia a DFW fan... a/k/a "things I didn't expect to read when I woke up this morning."
Tim said...
"To [Roberts], quite obviously, words have no meaning. Since, after all, nearly all impositions of government function as a tax, regardless of what they are called."
Even if that was true--it isn't--not every government imposition would be unconstitutional absent, and thus engenders, a saving construction. Roberts' is crystal clear that his holding on the tax power is not freestanding; he does not accept that the tax argument is persuasive on its own, but only having received the "extra push," so to speak, of the avoidance canon. A lot of commentators are missing this point, which is unfortunate, because it is absolutely critical: Without it, Roberts' discussion of the commerce power is dicta. With it, it's holding.
Had Garner as a legal writing prof. Every time I start to think Scalia would be an unpompous blast to have a beer with, off the bench, you remind me of his Garner connection. And all fantasies vanish.
@Simon
Bull
Shit.
He gave the congress carte blanche to tax everything, period. We don't like your attitude, you can keep it, but you'll have to pay a tax on it.
And besides, So HE (Roberts) is going to sit on the court for the rest of eternity keeping liberals from ruling just the opposite of his intent??
To quote you-- "Roberts' is crystal clear that his holding on the tax power is not freestanding; he does not accept that the tax argument is persuasive on its own, but only having received the "extra push," so to speak, of the avoidance canon."
Operative term there being "his".
That's so dumb a point that I can believe he actually thinks that way.
A far better ruling would have been, "This is unconstitutional, re write this POS. We'll take it up again."
But we know that could not ever happen again, because the Dems, had to cut so many deals to do it it forever galled the American people, and the Dem's hemoragged seats. They lack the balls to try the trick again. And the fucking Republicans are just mad that they didn't do it first...Think of all the POWER!!!
Roberts is a fuckwad, who will be damned forever in the hell he deserves. Listening to lawyers argue over the meaning of the word "is".
If DC were to be nuked with Congress in session, it'd be the best thing to ever happen to this country.
Simon - one certainly can view the impositions, and the penalties resulting from noncompliance, as functionally a tax.
Had Congress and the president want this a tax, under which its authority was broadly known and accepted, they would have written it that way. There certainly are sufficient examples for so doing.
Regardless, I prefer the dissent. It is more cogent and reasonable. It strains and stretches at nothing; it is credible rather than incredible.
Tim, I prefer the dissent, too; it's handling of the issues is more persuasive. But that does not make Roberts' opinion the wild-eyed nonsense that some seem determined to brand it. Nor is it relevant in this context what Congress and the President wanted; it is true that we are still engaging in a silly intentionalist game for purposes of severability (that must change, just not in this case), but the purposes of a saving construction, the reading of the text need only be "plausible," Clark v. Martinez, 543 U.S. 371, 381 (2005), or "fairly possible," United States v. Jin Fuey Moy, 241 U.S. 394, 401 (1916).
Carnifex, whether the Roberts opinion is controlling under Marks is a debate that is already under way by people who are significantly better-qualified to engage in it than you are. For example, they will have significantly more debate of how Marks applies and significantly fewer expletives directed at the Chief.
leslyn said...
"Oh Carnifex, don't say that, even when you're angry. I've been there. 9/11. … You haven't been inside an attack on your country. Don't wish it on anyone."
Amen.
"You didn't bother to read the link, did you, Tim?"
What the hell are you talking about?
Explain, please, how the link would inform, or not inform, what I wrote.
Hint #1: Just because you found the link persuasive, doesn't mean everyone else does too.
Hint #2: That is almost assuredly a universal truth.
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