Bench Memos

Questions from Senator Franken

He liked Perry Mason, too.

He asks Judge Sotomayor her definition of “judicial activism,” after complaining that it seems to be used increasingly as just a term of opprobrium for judicial decisions you don’t like. Fair enough, although of course it’s mostly the Left that has distorted the term, not conservatives. She says she doesn’t use the term, I think because she doesn’t like that kind of judging (huh?).

Then legal and constitutional historian Franken explains why the Constitution makes clear that the Voting Rights Act of 1965 is constitutional, since the Fifteenth Amendment gives, in his view, unreviewable authority to Congress to pass any law it likes to enforce it. Very silly; here’s my take on why the text of the Fifteenth Amendment makes it clear that the Voting Rights Act is not constitutional.

Then Supreme Court practitioner and expert Franken complains about the Court’s recent decision regarding the degree of causation that must be showed under the Age Discrimination in Employment Act. He says that the Court decided the case on grounds the parties had not briefed. I know that the dissent made a similar complaint, but that doesn’t sound right to me, since I remember advising an amicus in the case to file a brief that made exactly the arguments that the Court adopted.