Tuesday, November 27, 2007
I have found myself in agreement with Justices Scalia's and Thomas's dissenting opinions with some frequency. It distresses me a bit because they are politically aligned with an ideology I often disagree with.
My admirations for the dissents' arguments comes from the fact that Thomas & Scalia are originalists: they think the interpretation of the Constitution should be confined to the plain meaning of the language in the document and the framers' intent. It is a much easier position to argue than one that teases contemporary ideas and meanings out of the language of the document, because it has clear guidelines and set parameters. Dissenting opinions are also not as likely to be the product of bargain and compromise as are majority opinions. The writer of the dissent is not constrained by needing to temper the language to satisfy a swing vote. Similarly, it is easier to tear down an argument than it is to build one up.
I also like Scalia's dissents because they are entertaining. I spend enough time reading opinions that a Scalia zinger is a welcome occasional diversion.