You raise an important issue about the Court that I’ve been complaining about for a long time, namely, the homogeneity of the experience of the justices. Jackson as a former public defender brings a different and important perspective. There should be a ban on future appointments whose main qualification is that they’re former law clerks who are members of the federalist society.
They've never been strict textualists, because strict textualism is inadequate for interpreting law. That's why they (used to) call themselves "originalists", and why originalists worked so hard to avoid describing the value judgement within textualism that originalism makes. Of course as you said, Thomas abandons even that value here to simply invent laws that he'd prefer to be on the books.
It brings me great fear when a justice believes "no additional part addressing statutory claims was an 'oversight.'" as that is basically contrary to statutory interpretation. "Congress didn't include this, but that was clearly an oversight" is a very dangerous gloss for a justice under our form of statutory interpretation.
You’ve completely missed the purpose of her use of that. It was in response to a “negative inference” from the majority, so, literally, both sides were addressing something that isn’t there. Thomas said we should read that as intentionally creating a limit. Jackson brought forth several reasons, the “oversight” issue being just one — and one with a reason based on the state-law provision from which it was drawn — that we should not read the law as silently having created a limit.
I see. I guess my disagreement is with characterization or framing by Jackson with regards to the silent limit. It is not natural to characterize a law that does not expressly allow for something to happen as a silent limit. It is more natural to characterize that as an accurate reading that the law does not account for it and the natural consequence of that is the law does not allow it since the legislature cannot intend for anything it did not account for. A law not allowing something to happens is not a silent limit, rather, it is just the consequence of the law, i guess, is my point. If the legislators wrote the laws better, then the justices wouldn't have to read so much into these things! Cheers and thank you for the thoughtful and direct response, as always.
The entire purpose of her argument is that there already was a pre-existing right. This combines with the "clear-statement rule" portion of her dissent. If you have an existing right (here, to habeas for statutory innocence claims), then the precise argument you're making should be flipped. The legislature shouldn't be presumed to have created a limit on that pre-existing right by way of "negative inference."
You raise an important issue about the Court that I’ve been complaining about for a long time, namely, the homogeneity of the experience of the justices. Jackson as a former public defender brings a different and important perspective. There should be a ban on future appointments whose main qualification is that they’re former law clerks who are members of the federalist society.
The "strict textualists" are fine with hazy inferences when it suits their preconceived outcome.
They've never been strict textualists, because strict textualism is inadequate for interpreting law. That's why they (used to) call themselves "originalists", and why originalists worked so hard to avoid describing the value judgement within textualism that originalism makes. Of course as you said, Thomas abandons even that value here to simply invent laws that he'd prefer to be on the books.
What a disheartening decision.
Can anyone foresee a route by which Thomas could be sent to prison? It would be delicious to see one of his “ decisions” come back to bite.
It brings me great fear when a justice believes "no additional part addressing statutory claims was an 'oversight.'" as that is basically contrary to statutory interpretation. "Congress didn't include this, but that was clearly an oversight" is a very dangerous gloss for a justice under our form of statutory interpretation.
You’ve completely missed the purpose of her use of that. It was in response to a “negative inference” from the majority, so, literally, both sides were addressing something that isn’t there. Thomas said we should read that as intentionally creating a limit. Jackson brought forth several reasons, the “oversight” issue being just one — and one with a reason based on the state-law provision from which it was drawn — that we should not read the law as silently having created a limit.
I see. I guess my disagreement is with characterization or framing by Jackson with regards to the silent limit. It is not natural to characterize a law that does not expressly allow for something to happen as a silent limit. It is more natural to characterize that as an accurate reading that the law does not account for it and the natural consequence of that is the law does not allow it since the legislature cannot intend for anything it did not account for. A law not allowing something to happens is not a silent limit, rather, it is just the consequence of the law, i guess, is my point. If the legislators wrote the laws better, then the justices wouldn't have to read so much into these things! Cheers and thank you for the thoughtful and direct response, as always.
The entire purpose of her argument is that there already was a pre-existing right. This combines with the "clear-statement rule" portion of her dissent. If you have an existing right (here, to habeas for statutory innocence claims), then the precise argument you're making should be flipped. The legislature shouldn't be presumed to have created a limit on that pre-existing right by way of "negative inference."