David Souter vs. the Antonin Scalias
It should become the philosophical shot heard 'round the country. In a remarkable speech that received far too little attention, former Supreme Court justice David Souter took direct aim at the conservatives' favorite theory of judging.
Souter's verdict: It "has only a tenuous connection to reality." At issue is "originalism," an approach to reading the Constitution whose seeming precision has given conservatives a polemical advantage over the liberals' "living Constitution" idea that appears to let judges say our founding document means whatever they want it to mean.
Justice Antonin Scalia, the court's leading orginalist, summarized his opponents' attitude toward the Constitution with four words: "You know, it morphs."
Now, thanks to Souter's commencement address at Harvard last week, Scalia's critics have fighting words of their own. Souter, who did not mention Scalia by name, underscored "how egregiously it misses the point to think of judges in constitutional cases as just sitting there reading constitutional phrases fairly and looking at reported facts objectively to produce their judgments."
There's more:
http://www.washingtonpost.com/wp-dyn/content/article/2010/06/02/AR2010060203496.htmlI can't imagine a more scathing comment on a philosphy:
'It "has only a tenuous connection to reality."'
That is a comment that Souter would not make while a sitting justice. He is obviously not of the same judicial temperment as Scalia to say the least. That he would even say such a thing in a speech now is remarkable.
I believe that Souter had much more respect for what the Supreme Court represents than Scalia ever will.
Scalia's sarcastic attacks on the judgement of his fellow Justices brings the level of the discourse down a great deal. He can't argue without degrading someone.
I said 'Boom???' because I don't believe Souter's speech was heard loudly enough.