The justice had particularly strong criticism of living constitutionalists’ appeals to “evolving standards of decency.” He explained that justices are in no position to know what those standards are.  He joked, “I’m even afraid to ask.” Referring to the criticism that textualism requires judges to be historians, a role they are supposedly not good at, he continued, “If you don’t think that lawyers aren’t good historians, do you think they are good ethicists?”

It’s kinda funny. I made a very similar point to a Philosopher this past weekend at the Medical Humanities Conference. A philosopher contended that judges should apply principles of the philosophy of language to their modes of construction (I would be lying if I could tell you what that means). I told one of the Philosophers that a common criticism of judges engaging in historical work is that judges are not trained in history. Similarly, most judges are not trained in philosophy (or ethics to allude to Scalia’s point above). Does that mean judges can’t decide cases in that area?

Of course not. Rather litigants should bring forward those positions, and the adversarial process can sort it out, right?

I suppose in addition to competing historian briefs, we could have dueling ethics or philosophy briefs.