Originalism of 'Moral Substance'
On today’s action-packed pod, our hosts start with an interesting certiorari grant to U.S. v. Tsarnaev, the Boston Marathon bombing case. The appellate court overturned the trial court’s death sentence for Dzhokhar Tsarnaev on the grounds that 1) the trial judge did not ask the jurors about their pretrial media consumption, and 2) that he did not allow evidence about the his brother Tamerlan’s alleged involvement in a previous murder to inform the case. Tamerlan Tsarnaev died in a shootout with police after the 2013 bombing. Sarah and David give us their predictions on how the Supreme Court is likely to rule. Also in the hopper for today: Our hosts introduce us to a union case and discuss speculation surrounding Justice Stephen Breyer’s retirement, a D.C. Circuit dissent by Judge Laurence Silberman, the MAGA right’s rejection of originalism, and best picture nominee Promising Young Woman.
Show Notes:
-Massachusetts Lobstermen’s Association et al. v. Gina Raimondo, Secretary of Commerce, et al.
-Christiana Tah and Randolph McClain v. Global Witness Publishing, Inc. and Global Witness.
-“A Better Originalism” by Hadley Arkes, Josh Hammer, Matthew Peterson, and Garrett Snedeker in the American Mind.
-“Zack Snyder’s Justice League and America’s Second-Greatest Superhero Trilogy” by David French in The Dispatch.
This was a great discussion. I'm glad I listened to the movie review, so I won't see it! Good observations from both Sarah: "... we're not teaching (guys) the good behavior, we're just teaching the things they should say" and David: "we are in such a performative era regarding virtue...that is not gonna look so great as time goes by." Everything has become performative since that is what our culture rewards. Sadly the American megachurch hasn't been a bulwark against this, but is Exhibit A.
Re Judge Silberman: "I have discovered a truly marvelous proof of this, which this margin is too narrow to contain."