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comment by b_b
b_b  ·  102 days ago  ·  link  ·    ·  parent  ·  post: Clearance Thomas' Surprise

Isn't Thomas' opinion that one shouldn't have policy motives? I thought that was the whole theory behind textualism (as flawed as that reasoning is).

Anyway I guess it doesn't matter so long as the outcome is desirable.

johnnyFive  ·  102 days ago  ·  link  ·  

Yeah that's my point, and so I don't think it's correct to suggest that this means anything beyond that.

b_b  ·  102 days ago  ·  link  ·  

The lawyer quoted in the text says that the opinion was "excellent and clear-eyed rendering of the law and the problems with courts' overbroad interpretation which goes against the text." (Emphasis mine) I guess I'm just wondering if a judge or Justice finds his or her way to a decision that has wide-ranging policy implications, does it matter what, if anything, the policy motive is? Not asking rhetorically. Genuinely curious about your opinion on that.

johnnyFive  ·  89 days ago  ·  link  ·  

Sorry, somehow the notification for this didn't pop up until now.

What you're describing is one of the big debates in terms of statutory interpretation. My own somewhat uninformed take is that judges are always conscious of policy motive in some way shape or form (how could you not be?), although they try to avoid hanging their hat on it. Sometimes they go too far IMO: most of the caselaw dealing with racial discrimination, for example, says that you have to show disparate intent, not just disparate impact.