SCOTUSblog: Nominee Analysis - Judge Diane Wood

Continuing our examination of the “shortlist” candidates to replace Justice David H. Souter, below is a profile of Seventh Circuit Judge Diane P. Wood and brief analysis of how her opinions have intersected with the Supreme Court’s decisions.

Articulating her understanding of constitutional interpretation in a lecture entitled, “Our 18th Century Constitution in the 21st Century World,” Seventh Circuit Judge Diane P. Wood laid out her view that judges should not confine their interpretation of the Constitution to the narrowest reading of the text. Rather, the Framers understood that courts would find “unwritten” law that allowed the text to adapt to contemporary needs: “here is no more reason to think that they expected the world to remain static than there is to think that any of us holds a crystal ball. The only way to create a foundational document that could stand the test of time was to build in enough flexibility that later generations would be able to adapt it to their own needs and uses.”

As an articulate proponent for a dynamic Constitution, Wood could provide the Supreme Court with a counterpoint to conservative jurisprudence of the right. In her 14 years on the Seventh Circuit, Wood has often played that role with respect to her conservative colleagues Justices Richard Posner and Frank Easterbrook. She has written over 50 dissents and concurrences and joined dozens more...

Wood’s formative clerkship with Justice Blackmun gives some hints to how she envisions the role of the highest court. Blackmun, who authored the majority opinion in Roe v. Wade in 1973, was a firm advocate for individual rights against government intrusion. Wood has praised Blackmun’s vision, as he demanded hard evidence of compelling state interests that would justify intrusions on individual liberty. In particular, Wood has referenced Moore v. City of East Cleveland (1977), in which Blackmun joined the plurality reversing a city housing ordinance that strictly defined a family unit. In Wood’s view, the Burger Court correctly read the Fourteenth Amendment to protect the “basic value” of the “sanctity of the family.” In the Roberts Court, it is possible that cases on same-sex marriage would give Wood an opportunity to further “the right to be free of discrimination” and “the right to be left alone.”

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