i don t think that the framers thought, well, let s pass something even though we, ourselves, meaning the members of congress, think there is a constitutional problem here. that s not how it has worked historically, nor do i think that s how the framers necessarily intended for congress to work. and there are myriad instances, moreover, where we might enact something that might not be challenged for a long time or might be difficult to challenge due to somebody lacking standing, absence of a ripe controversy, so for the? that particularly happens in the national security context i think, senator. especially if it s something done in a foreign country against foreign citizens that might be difficult to get into court in some way or another. one of the reasons i focus on this today, there was an exchange you had earlier today about the indefinite detention of american citizens apprehended
and this little array of, i would say, strategic litigators who are funded by corporate interests and right-wing interests, and then amicae, who we don t know who is behind them, and you see this result, that s a tableau that is an alarming one i think for the court. i would urge you to think hard about whether that s the direction you would want to continue to go as an associate justice of that court because at some point those numbers catch up with you. at some point, as i said yesterday, pattern is evidence of bias. senator, a couple of thoughts. first on the amicus briefs, in my experience, i pay attention to the quality of the arguments in the briefs, not the identity of the parties on them. i take your point on the disclosure. i would be interested in the specifics of anything you are talking about the disclosure
there was an american citizen involved. you are right, also, of course, you have studied this as much as anyone, but the court did resolve the case very quickly, and the opinion, i have spent many an hour trying to decipher certain pracaragraphs for cases have had. it s not easy. the court, to its credit, give a little credit, did have an eight-hour oral argument. i read the transcript of that to try to figure out what was going on in the opinion that did not unlock the box completely for me on what was going on in the kieran opinion. your point, justice scalia said it was not the court s finest hour. it was a rush. it was a rush. and rushes, sometimes the court has to rush, but rush decisions in a judicial context sometimes aren t always the best. on that point, would you be open to the idea of bringing back the era of the eight-hour
inconsistent with the constitution, the supreme law controls, namely, the constitution controls over a contrary statute. that s of course discussed in federalist 78 as well of what is the supreme law of the land and the constitution is the supreme law. again precedent, historical practice subsequent to the passing of the text. we see that for example on establishment clause cases. the court will often look at the text. what is the historical practice. and precedent, which is rooted in article 3, those things go in it. the words, the original public meaning are an important part of constitutional interpretation and has been, i think, throughout. let s suppose congress in its infinite wisdom with it s approval rating that ranges between 9% and 11%, making us slightly less popular than raul castro in america and slightly
like, for instance, the pacific legal foundation. are you familiar with that group? i have seen briefs by the pacific legal foundation. do you know what they do? i ll take your description. okay. my description is that they get money from right-wing conservative and corporate interests and they look for cases around the country that they believe they can use to bring arguments before the court. i argued against them in the supreme court at one point. they came all the way across the country to the shores of winnepog pond, rhode island, to hire a client whose case they could take to the supreme court with the purpose to make a point. they are not alone in doing this. there are a number of similar