Jay Fidell at ThinkTech Hawaii (Hawaii Public Radio KIPO-FM89.3) posts the podcasts of UH Law School dean and professor Avi Soifer’s appearance on the topic of “Pushing the constitutional envelope – how quickly, if at all, can it snap back.” It’s not about land use and related topics, but worth listening nonetheless for anyone interested in the role of the courts in protecting constitutional rights.
Sidebar: One of the more interesting law review articles I’ve read lately is Dean Soifer’s Courting Anarchy, 82 Boston U. L. Rev. 699 (2002), which criticized the U.S. Supreme Court’s Bush v. Goredecision, and analyzed the corrosive effect on judicial legitimacy whencourts make nakedly political decisions. Speaking of that case, The WallStreet Journal’s law blog has this interesting tidbit:
David Souter alone was shattered. He was, fundamentally,a very different person from his colleagues. It wasn’t just that theyhad immediate families; their lives off the bench were entirely unlikehis. They went to parties and conferences; they gave speeches; theymingled in Washington, where cynicism about everything, including thework of the Supreme Court, was universal. Toughened, or coarsened, bythe their worldly lives, the other dissenters could shrug and move on,but Souter couldn’t. His whole life was being a judge. He came from atradition where the independence of the judiciary was the foundation ofthe rule of law. And Souter believed Bush v. Gore mocked thattradition. His colleagues’ actions were so transparently, so crudelypartisan that Souter though he might not be able to serve with themanymore.
Souter seriously considered resigning. For manymonths, it was not at all clear whether he would remain as a justice.That the Court met in a city he loathed made the decision even harder.At the urging of a handful of close friends, he decided to stay on, buthis attitude toward the Court was never the same. There were times whenDavid Souter thought of Bush v. Gore and wept.