Idle Quasi-Legal Commentary

 Adding to this (or at least not subtracting from it).

“Legislative history” is a tool of statutory interpretation meant to keep the courts from wandering too far from what the legislature intended in the statute. Ironically:

The overriding concern of Berger's book is to ensure the exclusion of the courts from the policymaking process.

That’s a good statement of the tool’s purpose. But that goal is more honored in the breach than in the keeping, since what Walter Bruegemann said about “original intent”:

(which, as I've mentioned, Walter Bruggemann noted (un)surprisingly never seems to find what the "justices" asserting it disagree with)

is also true of statutory interpretation from legislative history: it always serves the ends of the interpreter.

Good judges don’t call this a problem; they call it “judicial realism,” meaning it’s part of the search for justice in the case before the court. Bad judges call it a principled legal stance, the better to bamboozle the rubes.

Legislative intent is a chimera, like authorial intent. Modern literary criticism recognized that “authorial intent” looked like the blind men describing an elephant; authorial intent depended entirely on the critics’ predilections. There was no way to square that circle without realizing: there was no elephant. Putting together various interpretations would not create a picture of the whole. It would only give you some insight to individual critical preferences, but no substantive analysis of the text. I’m pretty sure Poe’s “authorial intent” was to make money selling stories and poems (the latter of which are mostly penny dreadful Victorian Hallmark Hallowe’en cards). The only authorial intent I can truly divine behind his short stories is some masterful experimentation with the then emerging first person narrator, and especially the prospects for literary use of the unreliable narrator. Focusing on the text is much more interesting than imagining you know the author’s mind. Because, you don’t.

Any more than reading legislative history reveals the “mind” of the legislature that enacted the statute. It’s an attempt to claim “objectivity,” when there’s nothing objective about it. It is always a tool and an intent (the judicial one this time) more honored in the breach than in the keeping. Recognizing this, Judicial realism is a school of jurisprudence that acknowledges judges make guesses (a”judicial hunch”) about what would be justice in a case, and then find case law/a history of a line of reasoning, to support it. Judicial interpretation, of case law, of statues, of legal history, is, frankly, all over the place (even without the egregious efforts of Alito in Dobbs).  Even without being “The Supreme Court, bitches!,” you can find something, somewhere, to build a legal opinion on. The critical test then is: Is that opinion acceptable to the wider legal community? That’s where the raw assertion of supremacy comes in.

The strain between the Court and the courts is already showing. Nobody was quieted by Kavanaugh’s “BECAUSE WE SAID SO!” concurring opinion. And the “supremacy” of the court is well illustrated by the decision in Brown v Board which is the ostensible topic of the piece that is basic to the post I linked to. (Did you follow that? I almost didn’t.)

Well illustrated because: whither Brown today? Our schools are separate but equal by law, but are they any less segregated? There’s still a separation by geography, by community, by wealth. The school district I live in works assiduously to be fair to the entire district, but the differences in quality are still stark. There are four high schools, and the dividing line, economically, is physical: I-10 divides the district roughly in half. South, are some of the wealthiest neighborhoods in Texas. Those parents make sure their children’s teachers get all they need. North, the schools are good, but you’ll see more non-whites there than in one of the high schools on the other side of the highway, particularly. Attendance is by proximity to the school. No one is bused to maintain a balance or a “quota.” Maybe that’s a good thing, maybe it’s bad; but Brown is pretty toothless today, and that’s intentional.

What was the intent of the 15th Amendment? Justice Roberts is pretty sure it wasn’t to tell the states how to avoid racist elections. Someday we might amend the Constitution to enact the 15th, or to clarify that clause 3 of the 14th doesn’t need enabling legislation any more than clause 1 does. The point being, interpretations slide away quickly. It could be argued (without much dissent from me), that what’s happened since 1975 (or so) is a reaction, a backlash, to the changes of the ‘60’s which actually began with the return home of blacks from liberating Europe and Asia, only to find Jim

Crow alive and well and liberty still denied them here. They sought justice, they deserve justice, but justice was too just for Stephen Miller’s ideological predecessors.

And now that pendulum is going to swing back, because the injustice is too obvious; again. In the long run, supremacy of the Supreme Court ain’t so supreme. Of course, as Keynes observed, in the long run, we’re all dead. Cold comfort, indeed. But as long as the pendulum swings, there is hope.

Textualism and originalism are just systems of control in law. I don’t think Scalia penned too many majority opinions based on originalism. Maybe because they wouldn’t get majority support, or maybe because he put on the mantle when he was the dissenting bomb thrower. It always seemed like a schtick rather than a principle for him. Coney Barrett is supposedly his disciple, but she doesn’t preach that gospel much, either. Maybe because she doesn’t need to. It was always just a way to be an outsider and try to plant a flag for a higher principle. But in truth it was always just a sham , tossed aside whenever real power (majority opinion; the majority on the Court) was available.

I could analyze in detail the problems with “originalism and textualism, but why bother? They were never principles so much as Trojan horses, and once inside the gates, as quickly discarded as the MacGuffin they only ever were. The real issue is power, and who wields it, and why. Wield it against enough of the people (usually the white ones, especially the straight males), and you get your authority challenged. Where will that get us?

Well, at least not here; not for much longer.