After Hamdan: Jeff Goldstein on SCOTUS and Interpretive Standards
Most disturbing about all this, however, is the initial observation made by the WSJ’s editorial writers: “A single liberal retirement from the Court would thus put Hamdan‘s reasoning in jeopardy.”
How can this be? How can it be that we’ve reached the point where highly-charged SCOTUS decisions often break along partisan / ideological lines? (And before you go noting Kennedy’s break, note, too, that Kennedy defected on Kelo, as well, expanding “public good” to mean “whatever a local municipality can justify by arguing that it will bring in more revenue”. And to be fair, I think Scalia guilty of the same flawed “reasoning” in Raich).
The answer to why this is now so, I think—how “reasoning” become so completely relativistic—is that we no longer have a unified strategy for how to interpret, with the idea of a Living Constitution often acting as a judicial shortcut for failed legislative initiatives, which has the practical effect of codifying a strained (and logically problematic) idea of interpretation and how it is made to work, allowing its proponents to move back and forth between readings that cite legislative intent and readings that deny the importance of that intent in new and different “contexts.”
Be sure to read the whole thing