In this latest twist with the Supreme Court, I keep hearing the pundits referring to "the ghost of

[Baitball Blogger]

Scalia." Does anyone have any idea why? Did it have something to do with the way he insisted on proper legislative process, and now, the Roberts court is using that same excuse, er, reasoning, to turn down Trump's lawsuits, refusing to do the work for the legislature?

[The Velveteen Ocelot]

1. Scalia was a textualist, meaning he interpreted statutes by their literal words,

rather than trying to read into what might have been intended. Gorsuch did the same thing with the Civil Rights Act in the Bostock case.

[DarthDem]

2. It's About Textualism and/or Originalism

The two terms basically mean the same thing (although originalism is much more associated with the Constitution, and textualism with any other legislative or executive proclamation such as a statute or regulation): trying to figure out how the words on the page were commonly understood when they were first promulgated to the public.

Conservatives like Scalia - who always worked backwards, deciding the result he wanted first, then inventing a legal rationale or in this case using an entire branch of legal theory to justify it - famously used this in a highly reductive sense, so that no law (especially not ones that conservatives didn't like) could be expanded or evolve without legislative reinterpretation to keep up with the changing times. Basically, this was handy for making sure that all civil rights laws would remain frozen in time and would not evolve to keep pace with the changing needs of Americans.

Scalia got a lot of attention this week because Alito is a worshipful acolyte of the former, and to a slightly lesser extent so is Gorsuch. Accordingly, Alito's angry dissent in the Bostock case was almost entirely aimed at Gorsuch, and basically (in code) accused him of selling out Scalia's "textualist" philosophy by actually considering whether a 1964 statute should be expanded to provide more protection than was originally intended.

[Baitball Blogger]

3. Is textualism also called strict constructionism?

[DarthDem]

4. Basically, Yes

When people realized that textualism was coming to the forefront, its opponents called it strict constructionism. Scalia among others rejected that label, calling it inapposite - but that's only (in my view) because he and other textualists didn't like the negative optics of the highly apt "strict constructionist" name. Liberals lost that messaging war, in sort of the same way that they had to reband themselves as "progressives."