A Tale of Two Textualists: a Critical Comparison of Justices Black and Scalia Michael J
College of William & Mary Law School William & Mary Law School Scholarship Repository Faculty Publications Faculty and Deans 1994 A Tale of Two Textualists: A Critical Comparison of Justices Black and Scalia Michael J. Gerhardt Repository Citation Gerhardt, Michael J., "A Tale of Two Textualists: A Critical Comparison of Justices Black and Scalia" (1994). Faculty Publications. 990. https://scholarship.law.wm.edu/facpubs/990 Copyright c 1994 by the authors. This article is brought to you by the William & Mary Law School Scholarship Repository. https://scholarship.law.wm.edu/facpubs ARTICLES A TALE OF TWO TEXTUALISTS: A CRITICAL COMPARISON OF JUSTICES BLACK AND SCALIA MICHAEL J. GERHARDT* The idea that Justices Hugo Black and Antonin Scalia have anything in common jurisprudentially is counterintuitive. Justice Black is associated with the progressive social and economic legislation symbolized by the New Deal and with judicial activism in protecting the poor and disen franchised.1 He is beloved by many liberals as a champion of individual rights, especially freedom of speech and of the press. In contrast, Justice Scalia is revered by conservatives as a true believer-combating the rising tide of liberalism, big government, and judicial activism-set on restoring traditional notions of federalism and judicial restraint.2 Any effort to liken these two Justices makes both liberals and conservatives recoil. * Professor of Law, Marshall-Wythe School of Law, The College of William and Mary. B.A. Yale University; M.Sc. London School of Economics; J.D. University of Chicago. I am grateful for the encouragement and helpful comments on earlier drafts I received from Marc Arkin, Erwin Chemerinsky, George Cochran, Neal Devins, Jill Fisch, Tracy Higgins, Michael Herz, Sandy Levinson, Chip Lupu, Tracey Maclin, John McGinnis, Peter Shane, Bill Treanor, Steve Wermiel, and Ron Wright.
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