Bench Memos

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Kohl’s Round 3


K: Do courts need to consider public opinion in deciding cases?

A: Constitution structures courts the way it does in order that judges not look to public opinion to decide cases. That’s also why Constitution gives courts only limited authority. Sovereignty rests with the people. (It’s amazing that Dems actually need this elementary lesson in American civics.)

K: How deal with the fact that the Court has been striking down laws? (Does Kohl have any clue that his majoritarian premise is incompatible with his position on abortion?)

A: Starting presumption that an act of Congress is constitutional. Marbury v. Madison establishes judicial review.

K: How about term limits or age limits? A judge can serve “forever”.

A: The Constitution decides those issues.

K: But what is your opinion? (Now that’s a really good question . . .)

A: Don’t know; I appreciate the competing arguments.

More discussion of Kelo takings decision. Alito again expresses appreciation of special burden on homeowner when home is taken.

K: Do you agree with O’Connor’s dissent in Kelo?

A: Would have to address issue as precedent.

Discussion of O’Connor.


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