Should Supreme Court justices have opinions?
In the June 8 issue of the Weekly Standard, Terry Eastland considers President Obama's judicial philosophy, using his announcement last week of Sonia Sotomayer as his choice to replace Supreme Court Justice David Souter and his September 2005 floor statement (as a Senator), explaining his vote against Chief Justice John Roberts.
In his floor statement, Obama argued that “adherence to legal precedent and rules of statutory or constitutional construction will” give you clear answers in 95% of cases, such “that both a Scalia and a Ginsburg will arrive at the same place most of the time on those” cases. But in the “5% of hard cases, the constitutional text will not be directly on point; the language of the statute will not be perfectly clear; legal process alone will not lead you to a rule of decision.” In such ca
ses, decisions “can only be determined on the basis of one's deepest values, one's core concerns, one's broader perspectives on how the world works, and the depth and breadth of one's empathy.”
In other words, the law cannot not provide answers to every case and in these situations, one's own moral views are an appropriate replacement for gaps in the law.
In his introduction of Sotomayor, Obama fills in some what he believes these moral views should be. Obama argues that a Justice should have “experience being tested by obstacles and barriers, by hardship and misfortune; experience insisting, persisting, and ultimately overcoming those barriers.” This, he claims, will “give a person a common touch and a sense of compassion; an understanding of how the world works and how ordinary people live.”
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