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Thursday, April 08, 2021

Justice Jackson's Opinion Is An Outlier

One reason that I want to write a book about Justice Jackson's concurring opinion in Youngstown is that the near-universal praise given to his analysis is at odds with trends in modern jurisprudence.

For example, Jackson's opinion is personal. He refers to his work as Attorney General as a major influence on his views in a way that I think would be viewed critically today. (Isn't law supposed to be impersonal?) Likewise, Jackson dismissed originalism as a method of interpretation. The opinion does use history, but in a thematic way that I don't think that originalists find terribly persuasive.

Jackson's functional reasoning is also increasingly out of favor. He admits that there are some areas where the right answer is unclear or must be determined by policy considerations. He cites a lot of political science, ranging from a book by Woodrow Wilson to a quote by Napoleon. He also relies on a comparative assessment of European emergency law (from France, Germany, and Britain). And he talks about the modern presidency by referring to developments outside of the text such as the rise of the party system or the growth of mass communications. 

All of this makes me wonder if reverence for Jackson's opinion might decline in the coming years. Michael McConnell's recent book on the president offers the most sustained criticism of the opinion that I can find, which makes sense especially given his originalist approach in that book.

 

Posted by Gerard Magliocca on April 8, 2021 at 12:25 PM | Permalink

Comments

Needed this to quiet my mind .

Posted by: slope unblocked | Jul 26, 2021 10:19:11 PM

Breyer repeatedly in separate opinions at least also notes there is no crystal clear answer. That certain constitutional policy factors in that result in judicial judgment calls. Looking "outside the text" to history etc. was used by him and others too.

Posted by: pgslot gaming | Apr 13, 2021 9:28:44 PM

Some judges are not originalists and a separate opinion does give you more grounds to directly challenge that.

Posted by: Pgslot | Apr 13, 2021 9:28:20 PM

A concurring opinion does allow a justice to be more personal though directly talking about their own experiences [even though Breyer, e.g., in his recent lecture noted such things clearly matter] like that is seen in bad form. You might see it at times in separate lower court opinions, maybe.

Posted by: pg slot | Apr 13, 2021 9:28:02 PM

A concurring opinion does allow a justice to be more personal though directly talking about their own experiences [even though Breyer, e.g., in his recent lecture noted such things clearly matter] like that is seen in bad form. You might see it at times in separate lower court opinions, maybe.

(In a separate opinion, at least, some reference does not really seem in bad form. If a justice formerly worked in the executive department or whatever, or is stating something NOW that they supported differently THEN, some reference seems okay. Again, a separate opinion by nature is more personal, and can include personal experience too. You can do that and still adjudicate fairly. Again, see Breyer, it might be more honest and fair if you actually are more aboveboard.)

Some judges are not originalists and a separate opinion does give you more grounds to directly challenge that.

Breyer repeatedly in separate opinions at least also notes there is no crystal clear answer. That certain constitutional policy factors in that result in judicial judgment calls. Looking "outside the text" to history etc. was used by him and others too.

Alito in are recent concurrence challenged that apparent idea statutory interpretation methods were not judgment calls with some play in the joints.

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I think the opinion gets a lot of play since Robert Jackson gets so much respect overall for his writing and it has a certain easy to talk about three category flavor to it. But, it surely is open to dispute -- it was after all but one opinion of many. And, the subject overall as a court matter does not come up too often.

Posted by: Joe | Apr 9, 2021 3:35:46 PM

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