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12/13/2012

Josh Blackman: What Do You Call an Opinion that's not Originalist?
Michael Ramsey

At Josh Blackman's Blog, Josh Blackman asks: What do you call an opinion that's not originalist (and Bryan Garner weighs in)

I say: "non-originalist"  (Garner has some other ideas).  I agree with Professor Blackman's rejection of "unoriginalist."  We may disagree on the hyphen.

ALSO OF NOTE:  Professor Blackman offers an amusing account of the Supreme Court's recent textualist opinion in Kloeckner v. Solis: Supreme Court Unanimously Rejects Solicitor General's "Tortuous Reading" and "Mazelike Tour" of Civil Service Reform Act.

My addendum: the Kloeckner decision, although surely a win for textualism, shouldn't be a cause for undue textualist celebration; the equities and the text were fairly well aligned, so the Court's unanimity wasn't necessarily text-driven.  Still, as Professor Blackman notes, Justice Kagan shows a lot of textualist style.