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12/17/2017

John Manning: Justice Scalia and the Idea of Judicial Restraint
Michael Ramsey

John F. Manning (Harvard Law School) has posted Justice Scalia and the Idea of Judicial Restraint (115 Mich. L. Rev. 747 (2017)) on SSRN.  Here is the abstract:

The book review of Antonin Scalia, A Matter of Interpretation (1997), suggests that Justice Scalia’s commitment to textualism and originalism may be rooted as much in a scruple against judicial discretion as in claims of democratic legitimacy.   In particular, Justice Scalia structured A Matter of Interpretation around a criticism of the “common law” method, which he saw as vesting excessive discretion in judges.  He went on to argue that interpretive approaches such as statutory purposivism and living constitutionalism raise concerns, in large part, because they invite judges to behave as common law judges.   Connecting this theme with some of Justice Scalia’s well known opinions, the book review adds that Justice Scalia’s “anti-discretion principle” also explains some other aspects of his judicial behavior, such as his tradition-based approach to substantive due process, his general antipathy to balancing tests, and his views on stare decisis.  The book review concludes by identifying some puzzles arising out of Justice Scalia’s “anti-discretion principle” and offers some preliminary thoughts about why his approach may have gained traction despite those puzzles.