John Roberts, the Umpire in Chief - The New York Times - 0 views
www.nytimes.com/...berts-the-umpire-in-chief.html
interpretation legal judicial theory constitutionality supreme court
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The Roberts-Scalia debate is part of a longstanding argument about how judges should interpret laws passed by Congress.
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the chief justice embraces an approach called “purposivism,” while Justice Scalia prefers “textualism.”
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In Judge Katzmann’s account, purposivism has been the approach favored for most of American history by conservative and liberal judges, senators, and representatives, as well as administrative agencies. Purposivism holds that judges shouldn’t confine themselves to the words of a law but should try to discern Congress’s broader purposes.
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In the 1980s, when he was a lower court judge, Justice Scalia began to champion a competing view of statutory interpretation, textualism, which holds that judges should confine themselves to interpreting the words that Congress chose without trying to discern Congress’s broader purposes.
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Textualism, in this view, promises to constrain judicial activism by preventing judges from roving through legislative history in search of evidence that supports their own policy preferences. But in the view of its critics, like Chief Judge Katzmann, textualism “increases the probability that a judge will construe a law in a manner that the legislators did not intend.”
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Judge Katzmann, who was appointed by President Bill Clinton, also accuses Justice Scalia of inconsistency for consulting the intent of the framers in the case of constitutional interpretation but not statutory interpretation.
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The chief justice’s embrace of bipartisan judicial restraint in the second Affordable Care Act case was consistent with his embrace of the same philosophy in the first Affordable Care Act case in 2012, where he quoted one of his heroes, Justice Oliver Wendell Holmes Jr: “The rule is settled that as between two possible interpretations of a statute, by one of which it would be unconstitutional and by the other valid, our plain duty is to adopt that which will save the Act.”
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Chief Justice Roberts was not, as Justice Scalia charged, rewriting the law. Instead he was advancing the view that he championed soon after his confirmation: In a polarized age, it is important for the Supreme Court to maintain its institutional legitimacy by deferring to the political branches.
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Chief Justice Roberts’s relatively consistent embrace of judicial deference to democratic decisions supports his statement during his confirmation hearings that judges should be like umpires calling “balls and strikes.” As he put it then: “Umpires don’t make the rules, they apply them. The role of an umpire and a judge is critical. They make sure everybody plays by the rules, but it is a limited role. Nobody ever went to a ballgame to see the umpire.”