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Posts Tagged ‘interpretation’
June 11th, 2010 at 4:51 pm
David Souter Speaks Truth Without Power

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.