Legal Commentary

The Public Debate On Constitutional Interpretation

By Big Tent Democrat

Discussing Justice Souter's Harvard Commencement Address (my earlier post here), Linda Greenhouse writes:

[F]or those who care about the Supreme Court, Justice Souter served up some rich fare: his own vision of the craft of constitutional interpretation and a defense of the need for judges to go beyond the plain text — what he called the “fair-reading model” — and make choices among the competing values embedded in the Constitution. Doing this was neither judicial activism nor “making up the law,” he said; rather, it was the unavoidable “stuff of judging,” and to suppose otherwise was to “egregiously” miss the point of what constitutional law is about.

[. . . Souter] note[d] that with another confirmation season approaching, “we will as a consequence be hearing and discussing a particular sort of criticism that is frequently aimed at the more controversial Supreme Court decisions: criticism that the court is making up the law, that the court is announcing constitutional rules that cannot be found in the Constitution, and that the court is engaging in activism to extend civil liberties.” He framed the speech as a rebuttal to those criticisms.

Justice Souter's address provides a great place to start with nominee Elena Kagan on the issue of judicial philosophy and constitutional interpretation. Let's hope some intrepid progressive Senator on the Judiciary Committee (how about Senator Specter?) opens the conversation. In the meantime, I join Greenhouse's pleasure in seeing Justice Souter choosing to remain in this important discussion about constitutional interpretation.

Speaking for me only

Full post as published by TalkLeft on June 04, 2010 (boomark / email).