Judicial Pretensions II

I just wanted to say one more word about Scalia. I can never resist an opportunity.

What is bothering me at the moment is Scalia's contension that textualism serves as the most effective restraint on judicial activism and legislating from the bench. Yet this philosophy almost NEVER restrains Scalia. He likes textualism/originalism because his political views are conservative and tradionalist, and thus need not be restrained by a philosophy that disfavors change and gives power to the dead hand of history.

When textualism is not convenient, as in school segregation, affirmative action, or gender discrimination (as discussed in my last post), it is simply left out of the discussion, or some wishy-washy alternative like soft originalism is offered up in its place.

When Scalia needs to get around the text, he finds a way. He is the perfect example of why textualism offers no more restraint than any other jurisprudential method. Scalia likes it for exactly that reason. It conforms to and supports many of his positions, and no one can make him use it when he doesn't want to. How pretentious of him.