The Washington Post
has corrected Senator Ted Kennedy's misquoting
of Justice Thomas...
Correction to This Article
A July 30 Outlook article by Sen. Edward M. Kennedy (D-Mass.) incorrectly used the word "accept" rather than "respect" in quoting from a dissenting opinion written by Supreme Court Justice Clarence Thomas and joined by Justice Samuel A. Alito Jr. in the case of Hamdan v. Rumsfeld. The opinion referred to the court's "well-established duty to respect the Executive's judgment in matters of military operations and foreign affairs."
I've been thinking about this piece a bit over the last day or two. It reminded me of something that I read in Judge Robert Bork's Tempting of America
. Here is Bork talking about his failed Supreme Court confirmation hearing...
Senators, even the best of them, and the best are very good, simply do not have much experience with constitutional law, either as practitioners or as professors. The worst of them know only what they like and suppose that is in the Constitution.
Kennedy falls comfortably in Bork's "worst" category. Aside from Kennedy's usual wrongness, this kind of argument (when made by any side of the spectrum) strikes me as being incredibly hollow. There is no unifying field of legal theory, certainly not on the courts or in the schools. Demanding that the Court have some sort of Kennedy-approved (or anyone-approved) pure style of jurisprudence is ludicrous. The Court will continue to reflect the rest of the legal field, engaged in debate and conflict about what the law really is. Don't look for that debate to end soon.