Should Judges Follow the Constitution?
Elena Kagan’s nomination to the Supreme Court will presumably generate renewed discussion of this issue.
It’s an academic debate, however, since (virtually) no judges follow the Constitution. Instead, judges on the left and the right invoke the Constitution when it supports their desired outcome and ignore the Constitution when it does not. Only a few apply the Constitution consistently, indpendent of where it leads.
This is unfortunate, but it seems inevitable.
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