Legal Commentary

Souter On Constitutional Interpretation And The Kagan Hearings

By Big Tent Democrat

In a NYTimes Editorual published today:

Two recent moments have brought to mind Chief Justice John Roberts’s simplistic description of a Supreme Court justice as an umpire who confines himself to calling balls and strikes. The first was the reminder in Detroit on Wednesday night that umpires are highly fallible, and their calls subjective, even when something as important as Armando Galarraga’s nearly perfect game is at stake.

The other was former Justice David Souter’s brilliant demolition of the umpire metaphor in his commencement address at Harvard last week. It is hard to imagine a better preparation for the confirmation hearings of Elena Kagan later this month.

[. . .,] The senators who will soon decide Ms. Kagan’s nomination to the court should read Justice Souter on life experience in a changing world, and his appreciation of complexity. But more important, we hope the speech emboldens Ms. Kagan to speak her heart before the Senate in a way she has never done in public, which perhaps was Justice Souter’s intention. As the speech showed, rigid neutrality is not only disingenuous, it is a hindrance to proper decision-making. Certainty is an illusion, he said, quoting Oliver Wendell Holmes, and simplicity “devalues our aspirations.”

(Emphasis supplied.) My previous posts on Justice Souter's Harvard address are here and here.

Speaking for me only

Full post as published by TalkLeft on June 05, 2010 (boomark / email).