Justice Souter is a down-the-line un-originalist, pro-activist judge to whom no great legal opinions or insights can be attributed. His replacement will certainly be equally unconcerned with the text and/or meaning of Constitutional language.Expect to hear a lot of similarly idiotic and unsupportable drivel from the right over the next few months. There is not a single judge in the whole country who is "unconcerned" with "text and/or meaning."
Geoff Stone has a great podcast examining judicial activism, "passivism" and originalism.
ReplyDeleteDepends on what the meaning of "unconcerned" is. Professor Hylton wrote that "The lawyer has to at least go through the motions of a traditional text-based constitutional argument" and that "the content of constitutional arguments and constitutional truths are two entirely different matters." Perhaps some like-minded lawyers who become judges continue to "go through the motions of a traditional text-based constitutional argument" in their opinions.
ReplyDeleteI take it to mean "not concerned." Is it even possible to be unconcerned with text and/or meaning? Such criticisms seem to me based on pure speculation, to put it most charitably.
ReplyDeleteJustice (later Chief Justice) Rosenberry of the Wisconsin Supreme Court wrote that "those who have opposed the creation and extension of administrative tribunals have as a rule had the best of the argument on legal and constitutional grounds, but have been obliged to yield to an irresistible social pressure." That the courts were concerned that the Constitution not stand in the way of a result appears to me to be lack of concern in the sense used by Commentary.
ReplyDeletehey-you didn't give woody allen his due credit.
ReplyDeleteReaders here are sophisticated. I don't need to remind them. Anyway, it's an old favorite.
ReplyDeleteThanks for not just saying we're old enough to remember it.
ReplyDelete