The Public Debate On Constitutional Interpretation

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

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    I can see (none / 0) (#1)
    by jbindc on Fri Jun 04, 2010 at 01:54:19 PM EST
    Franken going there, even if he isn't a lawyer.  He'd love to publicly stick it to Scalia et al, because really - how many people will have read Souter's speech?

    LAT weighs in via editorial: (none / 0) (#2)
    by oculus on Fri Jun 04, 2010 at 02:22:44 PM EST