During oral arguments in Obergefell v. Hodges (2015), Justice Ginsburg asked a question that has heartened the supporters of marriage revision:
We have changed our idea about marriage is the point that I made earlier. Marriage today is not what it was under the common law tradition, under the civil law tradition. Marriage was a relationship of a dominant male to a subordinate female. That ended as a result of this Court’s decision in 1982 when Louisiana’s Head and Master Rule was struck down. And no State was allowed to have such a—such a marriage anymore. Would that be a choice that a State should be allowed to have?
Referring to this question, London’s Guardian newspaper gushed: “Ruth Bader Ginsburg Eviscerates Same-Sex Marriage Opponents in Court.”
When judges interpret federal statutes, are they interpreting laws? What should be the obvious answer to this question is complicated by a recent book, Judging Statutes, by the Chief Judge of the United States Court of Appeals for the Second Circuit, Robert A. Katzmann. Judge Katzmann shows us how a well-informed judge approaches difficult questions of statutory interpretation. Along the way, he raises challenging questions about what contemporary statutes are.
Doctrines of statutory interpretation rarely raise anyone’s blood pressure. The next time that the canons of construction appear on placards outside the United States Supreme Court building may be the first. Interpretation of legal texts is supposed to be a sober, reflective, and morally-neutral enterprise. So it was striking to observe the controversy around Judge Posner’s critical review of Justice Antonin Scalia’s and Bryan Garner’s book, Reading Law. Posner indulged in uncharitable jabs and even some ad hominem attacks. Scalia and Garner responded with pointed words. As others joined the fracas on law blogs and other media, exclamation marks and…