Bench Memos

Supreme Court Candidate Diane P. Wood—Part 5

I’ve just read two speeches turned into law-review articles by Judge Diane Wood, “Reflections on the Judicial Oath” (8 Green Bag 2d 177 (2005)) and “Our 18th Century Constitution in the 21st Century World (80 N.Y.U. L. Rev. 1079 (2005).)  There is a lot wrong with both articles, but for now I’ll limit myself to a few points:

1.  Wood gives no sign that she recognizes any meaningful bounds on the role of the Supreme Court.  In her view, “the text of the Constitution tends to reflect broad principles, not specific prescriptions,” and “broad language may legitimately be interpreted broadly [by the Supreme Court], in a manner informed by evolving notions of a decent society.”  (80 N.Y.U. L. Rev. at 1098.)  Among the matters that Wood doesn’t address is how it is that the Court has the authority to override democratic enactments based on its own reading of language whose meaning is, in relevant respects, indeterminate.

2.  Wood believes that it’s proper for the Supreme Court to revise the meaning of constitutional provisions to reflect contemporary international and foreign practices.  Commenting on the Court’s decision in Roper v. Simmons, she states that “the Court appropriately chose to enrich its understanding of the issue by reviewing international practice, acknowledging implicitly that the American people are indeed part of the broader human community and at least presumptively share its core values.”  (80 N.Y.U. L. Rev. at 1101.)

3.  Wood evidently believes that the inclusion of “under God” in the Pledge of Allegiance violates the Establishment Clause and that a Supreme Court ruling permitting that phrase would “announce that the United States is a nation that has adopted monotheism as its official state dogma.”  But perhaps I’m misreading her opaque and seemingly incoherent text, so I set forth the full paragraph here:

Last [of three cases involving “displays of patriotism”] is Newdow, in which Mr. Newdow tried unsuccessfully to raise the question whether the words “under God” in the Pledge of Allegiance to the flag violate the Establishment Clause of the Constitution. The Court ducked the issue. Ordinarily, that would be the end of the matter for now. And perhaps it will be here too, assuming that the Congress does not pass the legislation that has cleared the House that would strip the Supreme Court of jurisdiction to hear any case involving the Pledge. No matter what happens, however, it seems clear that no amount of pressure will cause the Court to announce that the United States is a nation that has adopted monotheism as its official state dogma.

(8 Green Bag 2d at 181.)

4.  Wood strongly signals, in her discussion of Loving v. Virginia, that she believes that there is a federal constitutional right to same-sex marriage:  “The right not to have the State prescribe a set of acceptable spouses, in the absence of the kind of powerful reason it would have for incest laws or laws designed to protect children, is implicit in the concept of liberty.”  (8 Green Bag 2d at 184.)

(For more on Wood, see my Parts 1, 2, 3, and 4 and this post on Jeffrey Rosen’s praise for Wood.)

Ed Whelan — Ed Whelan is a leading commentator on nominations to the Supreme Court and the lower courts and on issues of constitutional law.

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