Prometheus 6

I like the fact that a partial audio recording...about an hour...of the Supreme Court deliberations on New Hampshire's abortion restriction laws was made available. I think it's worth a general listen... one finds constitutional law isn't that difficult to follow.

The argument presented by Solicitor General Paul D. Clement for the Bush administration had real, obvious problems. I isolated it and broke it into three exchanges that are rather interesting when examined through an originalist's lens, largely because the justices all put the lie to the "legislating from the bench" accusation. Here they are, in order, in context and complete.

First the Solicitor General's exchange with Justice Breyer.

Justice Breyer points out the language of the bill is so ambiguous as to require judges to, well, judge stuff. Notice the call for judicial activism from the government's lawyer. Justice Scalia certainly did.

The Solicitor General's response...that the legislature is not better suited to set the limits, that the courts can issue any order the legislature can(!) and that judicial discretion is sufficient defense against charges of judicial activism (!!)...was enough to silence Justice Scalia. Probably in disgust.

This left it to Justice Souter, who sounded like he was just too through being interrupted by this little pissant, and Justice Ginsburg, who probably saved Mr. Clement's life.

This example clarifies a lot of hypocrisy. Justice Souter made very clear that the intent of those who passed the law is known, and the state of jurisprudence is such that judicial activism would be required to get the intended results of passing vague laws with broad language specifically designed to get around precedent with a lot of hand waving.