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Monday, October 31, 2005

 

Supreme Court

Watching the news this morning I was interested to see who the new nominee for the court would be. I was fairly surprised with President Bush's pick. I was expecting someone similar to O'Conner to fill her space. Judge Samuel Alito is a conservative and has been mostly seen by the public with abortion cases. While I do think that Alito would be a great edition to the court, some are a little worried about his judicial philosophy. While I think judicial philosophy is relevent in selecting a new court justice, the more important factor, as discussed in class, is how he interprets the constitution. According to cnn.com, Alito could end up similar to Justice Scalia in that he will "choose to make law rather than interpret law and move the court in a direction quite different than it has gone." I feel that this form of ruling is incorrect. The purpose of the Supreme Court should not be to make different laws but to interpret laws that already exist, and the best way to do this is by understanding the constitution. I feel that it is important for any future Supreme Court justice to make it known how they feel about the different parts of the constitution.

Comments:
"According to cnn.com, Alito could end up similar to Justice Scalia in that he will "choose to make law rather than interpret law and move the court in a direction quite different than it has gone." I feel that this form of ruling is incorrect. The purpose of the Supreme Court should not be to make different laws but to interpret laws that already exist, and the best way to do this is by understanding the constitution."

I suggest, always, that great care should be taken when reading or listening to "the news." It strikes me that a report that presumes Justice Scalia "makes law" is wildly off base. Now, as you suggest, a good approach for a Justice is to "interpret laws that already exist," and I submit that Justice Scalia is pretty good at this, and that his work is consistent with this, while Justice Breyer's "active liberty" is quite different. One of the "laws" that already exists is the Constitution. Justice Scalia's approach is more in tune with "original meaning," while Justice Breyer's "active liberty" seems a justification for taking a "living constitution" approach. I believe your suggestion of interpreting the law that already exists is better implemented by "original meaning" that it is by "active liberty" or a "living constitution."

So, I submit that if Judge Alito tends to share Justice Scalia's approach to constitutional jurisprudence, then he will come much closer to your suggestion than do several current members of the Court.

You will have an opportunity later in our class to read at least a bit of Justice Scalia's approach to the Constitution. You can consider for yourself whether the CNN report you refer to was accurate or biased.
 
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