I’ve found they do tend to be more blunt and straightforward. I think to understand them you have to start from the lens of his that stare decisis is a poor doctrine. Many of his dissents have such strong departures from the main opinion because of this. If you don’t presuppose things like the Wickard V Filburn case’s impact on the commerce clause dissents like Gonzalez v Raich, seem much more plausible.
the lens of his that stare decisis is a poor doctrine
I can imagine an abhorrent precedent like Dredd Scott leaving a bad taste in a young black lawyer’s mind, but it’s certainly an odd way to approach jurisprudence in a common law country, and it’s a pretty shit way to regulate a complicated body of law that relies on litigation for clarity. Combine it with a simplistic version of originalism once stare decisis is discarded, and I stand by my statement: bafflingly literal and lazy, and I’ll add arrogant. “I know best, the entire body of built up law that came before me is without value, and the decisions that real people make under their influence are gauze in the wind.” It invites constant relitigation and enables the most extreme kind of judicial activism while claiming to be above that fray.
I’ve found they do tend to be more blunt and straightforward. I think to understand them you have to start from the lens of his that stare decisis is a poor doctrine. Many of his dissents have such strong departures from the main opinion because of this. If you don’t presuppose things like the Wickard V Filburn case’s impact on the commerce clause dissents like Gonzalez v Raich, seem much more plausible.
I can imagine an abhorrent precedent like Dredd Scott leaving a bad taste in a young black lawyer’s mind, but it’s certainly an odd way to approach jurisprudence in a common law country, and it’s a pretty shit way to regulate a complicated body of law that relies on litigation for clarity. Combine it with a simplistic version of originalism once stare decisis is discarded, and I stand by my statement: bafflingly literal and lazy, and I’ll add arrogant. “I know best, the entire body of built up law that came before me is without value, and the decisions that real people make under their influence are gauze in the wind.” It invites constant relitigation and enables the most extreme kind of judicial activism while claiming to be above that fray.