USA Today: Rivkin defends Constitution against retiring Justice Souter’s assault

Former White House lawyer warns of excess judicial power

Former White House lawyer David B. Rivkin, Jr. recently took retiring Supreme Court Justice David Souter to task in a USA Today op-ed titled, “Souter happy to shape our Constitution.”

In the piece, Rivkin and co-author Lee A. Casey warned that the usual Constitutional debates are brewing again with the Supreme Court nomination of Elena Kagan; adding that Souter began them last month at Harvard with a thinly veiled attack stating that attempts to construe the Constitution’s words—broadly or narrowly—“had only a tenuous connection to reality.”

“It was impossible for me to allow his point of view to go unchallenged,” said Rivkin, a high profile D.C. lawyer currently representing 20 state attorneys general in the Florida health care lawsuit. “It’s the opposite of American democracy when you have judges deciding which parts of the Constitution need to be followed and which are outdated.”

Souter argued that the Constitution is “too full of ambiguous language and competing imperatives to sustain a textual approach to its interpretation,” Rivkin wrote. “When a judge makes the choices Souter suggests, without regard to the Constitution's words and their original meaning, it is the judges who rule and not the law,” Rivkin explained.

Rivkin closed by noting the case of racist Justice John Marshall Harlan, who believed in the superiority of the white race, but could not find a Constitutional basis for his belief. “The bottom line is that bad constitutional decisions, far from being the result of the Constitution's frailty,” Rivkin asserted,  “are caused by the frailties of judges who depart from it.”