Judicial Activism and Restraint: Scalia’s Originalism and Jackson’s Pragmatism

By Howard Carter

Howard Carter is currently in his final semester at Albany Law School. Howard is a retired U.S. Navy SEAL Master Chief who served in the SEAL Teams from 1990 to 2012. Howard has bachelors’ degrees from Boston University and The Massachusetts College of Liberal Arts, as well as a Master’s Degree from Dartmouth College. 


The author views the Court’s authority as gained in Marbury v. Madison (1803).  This authority gained in Marbury is described under the modern context of conservative and liberal judicial politics and philosophy.  The topic then narrows to a comparison of liberal and conservative sub sets: pragmatism and originalism.  The originalism of Justice Antonin Scalia and pragmatism of Justice Robert Jackson are compared and contrasted in order to look at two particular justices differing methodologies.  The author finishes the analysis with comparison and contrast of Justice Jackson’s dissent in Korematsu v. United States (1944) and Justice Scalia’s dissent in Hamdi v. Rumsfeld (2004).

The United States Constitution does not explicitly state that the Supreme Court has the power of constitutional review.  Due to this lack of authority, one of the first important constitutional law cases is Marbury v. Madison in 1803.   Marbury displays the early Court’s tenuous legitimacy and can be viewed as the Court’s assertion of power.

Current Chief Justice John Roberts stated that prior to Marbury, “the Supreme Court was a court of law, but it wasn't established as a constitutional court.  So, its early decisions tended to be just everyday run-of-the-mill legal disputes, not great constitutional questions.”

As such, it is sixteen years after the adoption of the United States Constitution when Chief Justice John Marshall asserts power with his opinion in Marbury: “ It is emphatically the province and duty of the judicial department to say what the law is.  Those who apply the rule to particular cases, must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each.”

Marbury is a political case.  It is a case where the Justices grapple with the legitimacy of the Court to decide on an action that impacts a political outcome.  It is considered within the context of the politics in which the case arose.   In Marbury the Court balances the political by grappling with the question of the overall nature of the Court’s authority first, and the specifics of jurisdiction second.

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To read the paper, open HERE.

Posner’s Pragmatism: A Viable Method of Judicial Interpretation

By Joshua Greenfield
Josh Greenfield, a 2014 graduate of Albany Law, did his undergraduate work at Syracuse University studying Art History. Josh has interned at CBS's legal division and the New York Public Employment Relations Board. He has been a contributing member of the Center for Art Law website, writing on various issues in the field of art law. Currently, he is a Legal Fellow with the National Center for the Study of Collective Bargaining in Higher Education and the Professions at CUNY’s Hunter College.
Josh has been published by the Center previously (See Ginsburg (and sometimes Scalia) on Search and Seizure, Jan.19, 2014.
This paper was prepared for Prof. Bonventre’s Judicial Process Seminar.


How can one argue with a pragmatic approach to judicial interpretation? A pragmatist is, by definition, sensible and reasonable. However, what does this really mean? What makes a decision “pragmatic”? How can pragmatic decisions be “right” or “wrong”?

This paper explores the concept of judicial pragmatism, and how judges like Richard Posner approach the concept. It also examines how judicial pragmatism is defined and how it compares to other methods of judicial interpretation, such as originalism and why it is a viable method of interpretation.

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To read the paper, open HERE.