Freedom Line Blog

Retirement must be a wonderful thing for former Supreme Court Justice David Souter.  Unburdened by the consequences of deciding cases, the judicial version of a RINO (Republican In Nomination Only) is telling Americans what he wants them to hear.  In essence, judging isn’t easy.  Thus, demands to restrict a judge’s attention to the text of a statute or the Constitution itself when deciding a dispute are pointless because a written law can’t contemplate every situation.  Sometimes a judge has to be a gap-filler.

Souter’s recent commencement address at Harvard is worth the read to get a sense of a pointed critique of Justice Antonin Scalia’s countervailing view of textual interpretation (A Matter of Interpretation).  Ironically, the main gripe with Souter’s speech isn’t its substance, but its timing.  Even Dahlia Lithwick of Slate stammers to explain a reason for waiting until after serving 19 years on the Supreme Court to make a cogent counterpoint.

Are the Justices overworked?  They do, after all, get summers off.  Of the current crop, only Justices Steven Breyer (Active Liberty) and Scalia have written books explaining their methods of interpretation – and Scalia’s is an edited version of lectures he gave.  Since Souter didn’t take the time to write a systematic approach to judging while judging, perhaps he’ll use some of his self-imposed availability to give future judges a sense of how to wrestle with the complexities of the job.

Given Souter’s temperament, such a book may be published posthumously.

How interesting that the Age of Obama is bringing about the demise of “centrist” Democrats.  The flurry of retirements from the House of Representatives this session come almost completely from the South and Midwest, once the cradle of Democratic congressional leaders.  Now, members like Marion Berry (D-AR) and Bart Stupak (D-MI) are retiring from politics after years of finding their social conservatism unwelcome in an increasingly secularist Democratic Party.

Many Americans outside Stupak’s congressional district were surprised to find an ardent pro-life Democrat still getting elected to public office.  Even more startling was his stance on ObamaCare: he wants a single-payer system; he just doesn’t want federal funding for abortions.  With his retirement announcement today, America isn’t likely to see another high profile Democrat willing to risk curtailing the growth of leviathan for what amounts to a religious conviction.

Then there is Associate Justice John Paul Stevens.  His retirement, along with former Justice David Souter’s last year, will probably be the last to involve a court member of one party leaving the bench so that a president of the other party can appoint his replacement.  Make no mistake; had Senator John Kerry (D-MA) won the presidency in 2004, neither Souter nor Stevens would have waited this long to leave.

So with Stupak and Stevens exiting Stage Left, there are now two more examples of the sharp, rigid partisanship that President Barack Obama has brought to our politics.  After all the election spin about post-partisanship, the only change he gave us was a historical dividing line between politics as people with ideas, and politics as parties with agendas.