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The Unexpected Scalia
A Conservative Justice's Liberal Opinions

$29.99 (P)

  • Date Published: February 2017
  • format: Paperback
  • isbn: 9781316635353
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  • Antonin Scalia was one of the most important, outspoken, and controversial Justices in the past century. His endorsements of originalism, which requires deciding cases as they would have been decided in 1789, and textualism, which limits judges in what they could consider in interpreting text, caused major changes in the way the Supreme Court decides cases. He was a leader in opposing abortion, the right to die, affirmative action, and mandated equality for gays and lesbians, and was for virtually untrammelled gun rights, political expenditures, and the imposition of the death penalty. However, he usually followed where his doctrine would take him, leading him to write many liberal opinions. A close friend of Scalia, David Dorsen explains the flawed judicial philosophy of one of the most important Supreme Court Justices of the past century.

    • Provides a comprehensive view of the judicial philosophy of Justice Scalia
    • Will inform the public of the reasons why Justices disagree about cases, especially on philosophical grounds
    • Explains how and why the Supreme Court divides on constitutional and statutory cases
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    Customer reviews

    17th Oct 2017 by PhillipTaylor

    BOOK REVIEW THE UNEXPECTED SCALIA A Conservative Justice’s Liberal Opinions By David M Dorsen ISBN: 978 1 10718 410 7 CAMBRIDGE UNIVERSITY PRESS www.cambridge.org __________________________________________________ CLEAR AND CRISP WITH THE BIOGRAPHICAL GRAVITAS EXPECTED OF SUCH AN IMPORTANT LEGAL FIGURE WHO WASN’T REALLY “A LIBERAL” An appreciation by Elizabeth Robson Taylor of Richmond Green Chambers and Phillip Taylor MBE, Head of Chambers and Reviews Editor, “The Barrister” This is a particularly fascinating insight into the life of an important legal figure in the USA, Justice Antonin Scalia. We were privileged to meet Scalia and his wife, Maureen, in London not long before his death in 2016. One never forgets meeting certain people and we shall remember our encounter with Scalia as a man as well as his position as an enduring and substantial figure in American jurisprudence. It is very clear that Antonin Scalia was one of “the most important, outspoken, and controversial Justices in the past century”. This touching and detailed biography is long overdue. David Dorsen’s meticulous work describes Scalia’s endorsements of “originalism”, which means the requirement to decide cases as they would have been decided in 1789, and “textualism”, which limits judges in what they could consider when interpreting text, thus causing major changes in the way the Supreme Court decides cases. Dorsen’s description of what “a liberal” is, contained in the introduction, is most useful although readers will arrive at their own opinions! Of course, a number of Scalia’s views are not shared by that many people in the United Kingdom. He is described by Dorsen in the following way as “a leader in opposing abortion, the right to die, affirmative action, and mandated equality for gays and lesbians, and was for virtually untrammeled gun rights, political expenditures, and the imposition of the death penalty”. In fact, quite an exhaustive list of all the most controversial issues of our contemporary times… and not at all “liberal”! What we found refreshing is that Scalia often “followed where his doctrine would take him, leading him to write many liberal opinions” according to Dorsen. The key to Scalia’s approach is why did he write so many liberal opinions. His answer was that “his legal philosophy compelled him to do so”, otherwise as he said, “he would have been inconsistent or worse”. And that is the answer in the book! As a close friend of Scalia, David Dorsen is placed in a very strong position to explain what he describes as “the flawed judicial philosophy of one of the most important Supreme Court Justices of the past century”. But it does, of course depend on your own point of view which is why this biography is such an important publication on both sides of the Atlantic. It was a privilege to meet him. One always has some anecdotes which are quite personal when meeting the opinion-formers and deciders of our time, and Scalia was no exception. We were not expecting to like him very much but we found him charming. And, as with all biographies, it is so useful to read about important figures like Scalia because there is so much that one finds out. The question I asked him (I couldn’t resist it) was on American Realism. “What”, I said “did you have for breakfast this morning?” “Boiled eggs”, he replied, with his wife enthusiastically agreeing, “and they were very nice”. And, as you can guess, he was charming throughout and knew exactly why I had asked the question… I wonder how often he had been asked that before, but I didn’t get an answer. So American Realism is alive and well, and we do know what judges have for their breakfast and that it doesn’t cloud their judicial thinking. Thank you- we did not agree with all his views but we have lost a towering American legal figure, but we do have this excellent biography from David Dorsen to remember him. The book was published on 2nd February 2017.

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    Product details

    • Date Published: February 2017
    • format: Paperback
    • isbn: 9781316635353
    • dimensions: 228 x 152 x 22 mm
    • weight: 0.59kg
  • Table of Contents

    Introduction - what is liberal?
    Part I. Scalia's Judicial Philosophy:
    1. The Confirmation hearings
    2. Scalia's principles of decision making
    Part II. Scalia's Conservative Constitutional Opinions:
    3. First and Second Amendments
    4. Constitutional criminal procedure
    5. Privacy and individual rights
    6. Government power and regulation
    Part III. Scalia's Liberal Constitutional Opinions:
    7. First Amendment - freedom of speech and more
    8. Fourth Amendment - search and seizure
    9. Fifth Amendment - criminal applications
    10. Sixth Amendment - right to trial by jury
    11. Sixth Amendment - confrontation clause
    12. Sixth Amendment - right to counsel
    13. Seventh Amendment - right to jury trial
    14. Habeas Corpus
    15. Separation of powers and Federalism
    16. Commerce clause and other provisions
    Part IV. Scalia's Conflicted Constitutional Opinions:
    17. Political speech
    18. Antiabortion demonstrations
    19. Free exercise of religion
    20. Punitive damages
    21. Peremptory challenges
    Part V. Originalism Reconsidered:
    22. Fundamentals reconsidered - textualism and originalism
    23. Fundamentals reconsidered - other doctrines
    24. Conservative opinions reconsidered - individual rights
    25. Conservative opinions reconsidered - other
    26. Liberal opinions reconsidered
    27. Conflicted opinions reconsidered
    Part VI. Scalia's Nonconstitutional Opinions:
    28. Four Liberal special cases
    29. Liberal criminal statutory opinions
    30. Liberal civil statutory opinions
    31. Conservative statutory opinions
    Part VII. Finale:
    32. The other originalist justice
    33. Conclusion.

  • Author

    David M. Dorsen, Sedgwick LLP, Washington DC
    David Dorsen is Of Counsel with Sedgwick, LLP. He served as an Assistant US Attorney in New York under Robert M. Morgenthau, and later as Assistant Chief Counsel of the Senate Watergate Committee under Senator Sam Ervin. He has taught at Duke University, North Carolina, Georgetown University Law Center, Washington DC, and George Washington University Law School, Washington DC. His book, Henry Friendly, Greatest Judge of his Era (with Richard A. Posner, 2012), won the Green Bag Award for Exemplary Legal Writing.

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