The Right Coast

January 12, 2005
Nonsense on Stuntz
By Mike Rappaport

Harvard Law Professor, William Stuntz, takes aim at the conservatives on the Supreme Court in his column, "The Right Has the Wrong Legal Theory." He attacks three things I like: federalism, originalism and formalism.

The piece is really annoying. It would be one thing for Stuntz to attack these values and say that he does not agree with them. But instead he reinterprets them to mean, in some cases, exactly the opposite of what they really mean, and then criticizes them.

So, according to Stuntz, originalism and formalism are not judicial techniques for following the law established by the authors of the law. No, they are smokescreens that allow judges to substitute their values for the actual law. Its too bad that a judicial activist like Justice Brennan is dead. According to Stuntz, had Brennan really wanted to be an activist, he should have been an originalist - formalist. Fortunately, activist Justice Breyer is still alive; maybe he will become a formalist - originalist.

Similar points apply to federalism. So for Stuntz, this value is not about decentralization and competition between the states. Instead, it is a means for the Supreme Court to direct social policy and to empower the teachers unions.