Wednesday, February 1, 2017


Messrs. Rivkin and Grossman acclaim the virtues of textualism in a judge (What Kind of a Judge is Neil Gorsuch?). Juxtaposed with Super Bowl week, it ought to be apparent why such a philosophy is the only appropriate attitude and methodology for a judge, certainly one in an appellate position.
Imagine that on the last play of the Super Bowl with time running out, trailing by four points, Falcons quarterback Matt Ryan lofts a pass to Julio Jones in the end zone. Jones catches and holds onto the ball but with only one foot clearly in bounds. According to Rule 8, Section 1, Articles 3-4, the on-field referee calls the play incomplete, thus the Patriots win the game and championship. But wait! In the final two minutes, there is a mandatory review. The off-field review ref overrules the play and declares a legal catch, thereby giving the championship to the Falcons. His reasoning? The NCAA rule legalizing a catch with one foot in bounds is “more just.” Patriots fans are outraged and march on NFL headquarters to burn Mr. Goddell in effigy. Falcons supporters accept the win with sheepish confirmation bias.
The judgment of the appellate ref is final, but is based on what he thinks should be the case over the clear text in NFL rules. If this is wrong in football, why isn’t strict application of the Constitution and laws as they are written and enacted the proper way to judge a case and to evaluate a Supreme Court nominee?
Yours truly,
Larry Greenberg     
Skokie IL

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