A couple of weeks ago, I wrote a post highlighting some really excellent articles that have come out in response to former Supreme Court Justice David Souter’s recent takedown of the highly flawed (to put it mildly) analogy of the Justice as a sort of robotic constitutional umpire. Since then, the debate as continued, and I wanted to point out a few more that make for great reading going into Elena Kagan’s confirmation hearings next week.
Donald Ayer, who was a deputy solicitor general in the Reagan Administration wrote an op-ed in the Washington Post explaining why the Supreme Court’s work can’t be done by a constitutional calculator:
Here's the rub: In nearly all the high court's cases, doubt exists not because the half or so of judges who decided the issue are stupid, don't get it or otherwise made some identifiable mistake. Rather, doubts exist because there are substantial persuasive arguments on both sides that cannot be dismissed as invalid or wrong. These cases must be resolved by deciding which collection of arguments is the more compelling; the justices make decisions by choosing to give priority to one set of contentions or another.
This is true of many constitutional cases, both because the Constitution is often unspecific and, as retired Justice David Souter recently observed, because its splendid generalities, such as equality and liberty, are sometimes in tension with one another. It is also true in the much greater number of more routine cases, such as where the words of a statute leave doubt about its coverage or effect.
Sonja West in Slate, says Kagan “needs to throw away the script”:
The absence of any dialogue on substantive law at these hearings is regrettable, but the political theater of discussing judging as mere law-to-fact application is truly alarming in that it goes to the heart of the public's understanding of what it is Supreme Court justices actually do. That's why Kagan needs to talk to the American people honestly next week about the job for which she is applying and why she is so qualified to get it.
And, in the New York Times Magazine, Noah Feldman calls for a new progressive vision of the Constitution that deals with macroeconomics just as much as civil rights:
Why does the absence of this vision constitute a crisis for liberals? The answer is that new and pressing constitutional issues and problems loom on the horizon — and they cannot be easily solved or resolved using the now-familiar frameworks of liberty and equality. These problems cluster around the current economic situation, which has revealed the extraordinary power of capital markets and business corporations in shaping the structure and actions of our government. The great economic and political challenges of our present decade — salvaging and fixing financial institutions, delivering health care, protecting the environment — have major constitutional dimensions. They require us to determine the limits of government power and the extent to which the state can impinge on collective and individual freedoms. Progressive constitutional thinkers, so skilled in arguing about social and civil rights, are out of practice in addressing such structural economic questions.
Finally, if you don't feel like reading, watch Al Franken's great speech to the American Constitution Society. "Originalism isn't a pillar of our Constitutional history," he says, "It's a talking point."