Seen on an academic discussion list: One professor notes uncertainty over precisely what is or is not permissible regarding affirmative action after the Michigan cases, and suggests that such uncertainty is unhealthy for a legal system, and provides support for Justice Scalia’s oft-quoted dictum [see correction below], “Liberty finds no refuge in the jurisprudence of doubt.” Another professor responds, “Is not Scalia’s famous ‘jurisprudence of doubt’ statement deeply at odds with Learned Hand’s famous statement to the effect (I paraphrase) that ‘the spirit of liberty is the spirit that is never too sure that it is right’? Do not fundamentalists like Osama suggest that we should endorse Hand’s not Scalia’s position?” So, stating that the law should be clear and certain=fanatical and murderous fundamentalism. No wonder the American legal system is as it is.
UPDATE: Something seemed a bit off about the Scalia quote attributed to Scalia by the two professors above, but I was too lazy to look it up. Sasha points out that the quote is actually from Kennedy’s opinion in Casey, mocked by Scalia in Lawrence. The basic point, however, still stands: Scalia is known for favoring bright-line tests in the interests of certainty and coherence, a preference he recently reiterated in Crawford, and the professor in question suggested that such a preference is analogous to Osama-like fundamentalism.
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