Cornyn offers originalist defense of Brown. Kagan disputes that defense, embraces view that equality principle of 14th Amendment confers broad power on judges.

Kagan: Doesn’t like term “living Constitution” (apparently because of the stigma it’s earned). But contends that interpretive role under that general approach is “highly constrained.” “The Constitution does not change,” but it is applied to new facts and circumstances and, in that process, “development” of our constitutional law occurs. [EW: If Roe is an example of “development,” then there are no limits on it.]

Kagan: On Commerce Clause, current approach is broad deference to Congress, with some limits (Lopez and Morrison). [EW: Rather clear sign that she’d uphold individual mandate in Obamacare.]

Extensive discussion of stare decisis, but no real exploration of problem of precedent that intrudes on realm of representative government.