...We need only look to the text of the Constitution. It defines our most fundamental rights and protections in open-ended terms: “freedom of speech,” for example, and “equal protection of the laws,” “due process of law,” “unreasonable searches and seizures,” “free exercise” of religion and “cruel and unusual punishment.” These terms are not self-defining; they did not have clear meanings even to the people who drafted them.The framers fully understood that they were leaving it to future generations to use their intelligence, judgment and experience to give concrete meaning to the expressed aspirations. Rulings by conservative justices in the past decade make it perfectly clear that they do not “apply the law” in a neutral and detached manner...
...Faithfully applying our Constitution’s 18th- and 19th-century text to 21st-century problems requires not only careful attention to the text, fidelity to the framers’ goals and respect for precedent, but also an awareness of the practical realities of the present. Only with such awareness can judges, in a constantly changing society, hope to keep faith with our highest law. This does not mean judges are free to make up the law as they go along. But it does mean that constitutional law is not a mechanical exercise of just “applying the law.” Before there can be a serious national dialogue about our Constitution, our laws and the proper role of our judges, that myth must be exposed.
If Geoffrey Stone is right -- and I think he is -- Scalia, Thomas, Alito and Roberts are revealed as jurists who may not belong on any bench. They have neither the judicial integrity nor the humility, intellect or empathy to be on the Supreme Court, much less in its majority.
By the way, empathy in any individual or society -- but particularly in government and our judicial system -- is crucial. In an individual, the absence of empathy can range from indifference towards others to sociopathy. You want sociopaths on the Court?
The full extent of the damage done by these judges is hard to see from our angle. I guess maybe thirty-forty years from now it will be clear.
