Friday, June 26, 2015


Mark Tushnet

This is a meta-comment on Obergefell and Johnson, with a side glance at King v. Burwell. According to the dissenters in Obergefell, most especially for my purposes the Chief Justice and Justice Scalia, the majority there assumes the mantle of our Governors, displacing the decisions made made democratically responsible legislators. This is a standard version of criticisms of judicial review. But, a quick look at Johnson suggests to me that it contains not a word about the judicial role in finding a federal criminal statute unconstitutional. Of course there are distinctions (though the existence of an explicit text really isn't one such distinction), but one might have thought that Justice Scalia, at least, might have hinted at explaining why his position in Johnson about the propriety of judicial review is consistent with his position on that question in Obergefell.

I look forward to watching the necks of conservative commentators undergo whiplash as they move from denouncing Chief Justice Roberts as a hack, a judge who ignores basic principles of interpretation and logic, and the like, into praising him as a wise judge who has deep insights in the basic presuppositions of our constitutional system.

Older Posts
Newer Posts