It’s been a busy day of media interviews, but I’ve worked in some writing. This New York Times symposium on Justice Souter’s legacy includes my contribution, “The Souter Mistake.” An excerpt:
What will Justice Souter be remembered for? No opinion of his comes to my mind except the joint opinion that he, Justice O’Connor and Justice Kennedy co-authored in 1992 in Planned Parenthood v. Casey. That joint opinion is significant not for its coherence or elegance (it has neither quality) but because it perpetuated Roe v. Wade’s removal of the issue of abortion policy from the ordinary democratic processes — and it resorted to what Justice Scalia aptly called a “Nietzschean vision” of the judicial role in order to do so.
The end result was not, as Souter and company contended, a resolution of the bitter national controversy over abortion, but the continued poisoning of American politics by the Court’s power grab on that issue.
Sunday’s Washington Post will also present, in its Topic A feature on what President Obama should do with his first Supreme Court nomination, my advice, including:
Alas, the once-dominant species of liberal proponents of judicial restraint has relatively few surviving members. Obama should find them — why not Jose Cabranes, the excellent judge whom President Clinton appointed to the 2nd Circuit? — and help revive the species.
As for the interviews: Here’s the transcript (with a few minor garbled passages) of my discussion with Glenn Beck. Believe it or not, I couldn’t bring myself to support Harold Koh’s candidacy for the Court.