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Nobody, least of all Scalia, has ever argued that there is no judicial discretion whatsoever. Otherwise what purpose would the supreme court serve that a simple
by cal5k 6y ago
Nobody, least of all Scalia, has ever argued that there is no judicial discretion whatsoever. Otherwise what purpose would the supreme court serve that a simple rulebook could not?
What he argued was that, insofar as the original meaning of the text was scrutable, it should be decided based on the text itself. There are plenty of decisions where Scalia (or other justices) felt that the constitution did not address the topic at all, and thus the Court had nothing to say on the matter. There were also plenty of cases where the Framers had not contemplated the specific application of the constitution to the question at hand, such as first amendment rights as they relate to the radio / TV / internet.
As for "originalism" being propaganda, that strikes me as a cynical view. I've read much of Scalia's writings, and he believed in what he said on the topic. His failure to perfectly live up to his own ideals in every case does not make them any less worthwhile, any more than our personal moral failings are an indictment of morality itself.