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Carson Holloway: Elena Kagan?s living Constitution

By Alliance Alert

Carson Holloway writing at Public Discourse: "This updated living constitutionalism, however, is even less compatible with a judge?s duty than the old, a problem left largely unexplored by Kagan?s Republican critics on the Senate Judiciary Committee. ... In some recently reported and widely defended comments, Supreme Court nominee Elena Kagan has gone much further, suggesting that judges may properly be guided by their own values in deciding cases. ... In a 1995 review of Stephen Carter?s The Confirmation Mess, Kagan approvingly quoted Carter?s claim that 'the interpreter?s own experience and values become the most important data' at a 'crucial moment' that arises in most cases heard by the Supreme Court. Then, speaking clearly for herself, Kagan adds that 'it should come as no surprise by now that many of the votes a Supreme Court justice casts have little to do with technical legal ability and much to do with conceptions of value.'"

Full post as published by Constitutionally Correct on July 02, 2010 (boomark / email).