Judge Ginsberg unfortunate passing and Supreme Court. Hot Topic with Judge Ginsberg unfortunate passing: Much of the first portion of the class has been devoted to illustrating how the Supreme Court is neither a purely legal institution nor a wholly political one unconcerned with the law or legal arguments. To some critics, though, the contemporary Court is more political than legal. “We would be better off,” they say, “if the political system acknowledged that the Court was a partisan institution and decided cases accordingly.” Do you think that we should be more honest about the Court’s political and partisan side, rather than advancing the idea that the Court is primarily a “forum of legal principle”? What might the consequences of such a shift be? For example, should we elect federal judges—as we do most state judges—to ensure that their values are our values? What is your reaction to the increasing partisan polarization around the Court, as has been recently seen following the death of Justice Ginsberg? Respond to this prompt in any way you deem appropriate, using course material to support your position.
At a conference panel devoted to the interpretation of the Constitution, one scholar (Scholar A) argues that original public meaning is the most valid method of constitutional interpretation. “Judges must use the interpretation that the public understood when the relevant text was ratified,” Scholar A says, “or else they are illegitimately deciding for themselves what powers the government has.” At the same panel, another scholar (Scholar B) rejects this statement. “Original meaning sounds like a good idea,” Scholar B says, “but in reality, it allows judges to pick their preferred meaning, and thus their preferred outcome. Living constitutionalism is more honest about what judging entails. Justices should be transparent about what values they hold and decide cases accordingly.” Respond to the arguments made by Scholars A and B. Your argument may support A, B, some combination of the two, or neither—make sure that your position is clear by the end of the first paragraph.