1 Leiter, Brian, American Legal Realism, in A Companion to Philosophy of Law and Legal Theory 249, 259 (Dennis Patterson ed., 1996).Google Scholar

2 Frank, Jerome, Law & The Modern Mind 119–20 (2008).Google Scholar

3 Schmitt, Carl, Political Theology: Four Chapters on the Concept of Sovereignty 34 (1985).Google Scholar

4 Methodological collectivism “holds that collective phenomena are explanatorily prior to facts about individuals,” which means that “[f]acts about society cannot be reduced to the decisions, attitudes, and dispositions of individuals,” whom “behave in culturally sanctioned ways” in “most of their activities.” Nicholas Bunnin & Jiyuan Yu, The Blackwell Dictionary of Western Philosophy 432 (2004).Google Scholar

5 Schopenhauer, Arthur, The Art of Always Being Right 24 (2004).Google Scholar

6 “Social organization operates inside of a cultural milieu: An institution can think only inside of the categories that culture provides.” Jeffrey Alexander, The Civil Sphere 69 (2006).Google Scholar

7 Gramsci, Antonio, Selections from the Prison Notebooks 436 (1971).Google Scholar

8 Id. at 438.Google Scholar

9 I speak of constitutional courts in a general way, not limiting myself to those adjudicative bodies that go by that name or to those courts that only review the constitutionality of legislation and administrative action.Google Scholar

10 Kozinski, Alex, What I Ate for Breakfast and Other Mysteries of Judicial Decision Making, 26 Loy. L.A. L. Rev. 993 (1993).Google Scholar

11 See, e.g., Or Bassok, The Sociological-Legitimacy Difficulty, 26 J.L. & Pol. 239 (2011).Google Scholar

12 For a recent and thorough study of the public debate context of a specific and important decision, see Linda Greenhouse & Reva Siegel, Before Roe v. Wade: Voices that Shaped the Abortion Debate Before the Supreme Court's Ruling (2010), and the accompanying paper, Linda Greenhouse & Reva Siegel, Before (and After) Roe v. Wade: New Questions About Backlash, 120 Yale L.J. 100, 105 (2011).Google Scholar

13 Sotomayor, Sonia, Lecture: ‘A Latina Judge's Voice', New York Times (May 15, 2009), http://www.nytimes.com/2009/05/15/us/politics/15judge.text.html. Justice Sotomayor has used that sentence or similar variations, reports the press, in speeches delivered in 1994, 1999, 2002, 2004 and 2001. See Dana Bash & Emily Sherman, Sotomayor ‘ise Latina’ quote used on multiple occasions, CNN (June 5, 2009), http://politicalticker.blogs.cnn.com/2009/06/05/sotomayor-wise-latina-quote-used-on-multiple-occasions/.Google Scholar

14 Brennan, William, Jr., The Constitution of the United States: Contemporary Ratification, 27 S. Tex. L. Rev. 433, 438 (1986).Google Scholar

15 Id. at 434.Google Scholar

16 While this catchword is associated with contemporary American jurisprudence, it is far from a recent creation. Walter Bagehot used it in 1873 in the introduction to the second edition of his treatise on the English Constitution, where he observed that “[t]here is a great difficulty in the way of a writer who attempts to sketch a living Constitution,—a Constitution that is in actual work and power. The difficulty is that the object is in constant change. An historical writer does not feel this difficulty: he deals only with the past; he can say definitely, the Constitution worked in such and such a manner in the year at which he begins, and in a manner in such and such respects different in the year at which he ends; he begins with a definite point of time and ends with one also. But a contemporary writer who tries to paint what is before him is puzzled and perplexed; what he sees is changing daily.” Walter Bagehot, The English Constitution 193 (Paul Smith ed. 2001).Google Scholar

17 Yarbrough, Tinsley E., David Hackett Souter: traditional Republican on the Rehnquist Court 105 (2005).Google Scholar

18 More specifically, President Bush gave that answer to correspondent Helen Thomas of United Press International, who asked him about Justice Souter's views on abortion and affirmative action. The dialogue between President Bush and the journalists portray the idea of judges interpreting rather than legislating as a sort of mantra; almost a shelter from where to hide from press scrutiny.Google Scholar

19 See, e.g., Robert Post & Reva Siegel, Democratic Constitutionalism, in The Constitution in 2020 25 (Jack Balkin & Reva Siegel eds., 2009): “Progressives used to conceptualize the Constitution as “living law,” as a “living charter” “capable of growth.” Believing that the Constitution was responsive to evolving social needs and to ideals of fundamental justice, they acted in the 1960s and 1970s to end school segregation, to secure fundamental fairness in the criminal justice system, to enforce the separation of church and state, and to recognize gender equality in work and family. By the 1980s, conservatives had united Americans estranged by these changes into a political movement that sought to roll back the rulings of the Warren and Burger Courts. Conservatives accused Congress of overreaching and the Court of legislating from the bench in ways that betrayed the founder's Constitution.”Google Scholar

20 See Greene, Meg, Sonia Sotomayor: A Biography 163 (2012): “Even as supporters took every opportunity to again emphasize Sotomayor's public record, her detractors focused more on statements made by Sotomayor while not sitting on the bench. One of them was the infamous ‘Wise Latina’ remarks made by Sotomayor in 2001.”Google Scholar

21 Justice Sotomayor distanced herself from the President, and arguably from her own earlier arguments, during her nomination hearings. That, however, falls beyond the scope of this paper.Google Scholar

22 Liptak, Adam et al., On the Issues: Supreme Court, N.Y. Times, available at http://elections.nytimes.com/2008/president/issues/judges.html.Google Scholar

23 Obama, Barack, Remarks on the Retirement of Supreme Court Justice David H. Souter, in Public Papers of the Presidents of the United States 604 (2009).Google Scholar

24 Baker, Peter, In Court Nominees, Is Obama Looking for Empathy by Another Name?, N.Y. Times, Apr. 26, 2010, at A12.Google Scholar

25 Calabresi, Steven, Obama's ‘Redistribution’ Constitution: The Courts are Poised for a Takeover by the Judicial Left, Wall St. J., Oct. 28, 2008, available at http://online.wsj.com/article/SB122515067227674187.html.Google Scholar

26 Epstein, Richard, Beware Of Empathy, Forbes, May 5, 2009, available at http://www.forbes.com/2009/05/04/supreme-court-justice-opinions-columnists-epstein.html.Google Scholar

27 Atria, Fernando et al., Irresponsabilidad Política, Nov. 18, 2005 (unpublished document, on file with author).Google Scholar

28 Arremetida Liberal en el TC, El Mercurio, Nov. 20, 2005, at A 2.Google Scholar

29 Correa, Rodrigo, Nombramiento de Bertelsen II, El Mercurio, Nov. 29, 2005, at A2.Google Scholar

30 Atria, Fernando, Antonio Bascuñán, Rodrigo Correa, Tribunal Constitucional, El Mercurio, Nov. 29, 2005, at A2.Google Scholar

31 Terrazas, Juan, Nombramiento de Bertelsen, El Mercurio, Nov. 29, 2005, at A2.Google Scholar

32 Id.; Of course, this person failed to see that what the group of constitutional law professors had questioned was Bertelsen's commitment to a democratic understanding of the Constitution, not his commitment to the idea of a Constitution nor to the constitutional text as it stands.Google Scholar

33 Accatino, Daniela et al., Nombramiento de Bertelsen I, El Mercurio, Nov. 24 2005, at A2.Google Scholar

34 Herrera, Hugo, Nombramiento de Bertelsen II, El Mercurio, Nov. 24 2005, at A2.Google Scholar

35 Zapata, Patricio, Nombramiento de Raúl Bertelsen, El Mercurio, Nov. 24 2005, at A2.Google Scholar

36 Id. Google Scholar

37 Francisco Zúñiga et al., Respaldo a Bertelsen, El Mercurio, Nov. 27, 2005, at A2.Google Scholar

38 Id. Google Scholar

39 Id. Google Scholar

40 In August 2011, Bertelsen was elected by his colleagues as the President of the Constitutional Tribunal.Google Scholar

41 I draw this usage from Philippe Nonet & Philip Selznick, Law and Society in Transition (1978); however, I understand these concepts and their interaction differently than they do. Nonet and Selznick conceive autonomous and responsive law as distinct forms of organizing the interaction between law and society, often stages in a developmental process. Instead, I see autonomy and responsiveness as competing rhetorical ideals of law.Google Scholar

42 See Harold Berman, The Interaction of Law and Religion (1974).Google Scholar

43 See Matthew W. Finkin & Robert C. Post, For the Common Good: Principles of American Academic Freedom (2009).Google Scholar

44 See, e.g., Robert Bork, The Tempting of America: The Political Seduction of Law 5 (1990) (asserting that “the common, everyday view of what law is” implies that “the judge is bound to apply the law as those who made the law wanted him to.”); Bruce Ackerman, We The People: Foundations 7 (1993) (conceptualizing the role of the Supreme Court as a mechanism “to preserve the considered judgments of the mobilized People from illegitimate erosion by the statutory decisions of normal government.”).Google Scholar

45 See, e.g., Balkin, Jack, How Social Movements Change (or Fail to Change) the Constitution: The Case of the New Departure, 39 Suffolk U. L. Rev. 27, 27 (2005) (observing that “Article III, not Article V, has been the great vehicle of constitutional development, and the work of Article III judges cannot be viewed in isolation from social movement politics,” a process that takes place “through the party system” and “through altering public opinion, and particularly elite public opinion.” (id. at 30.)).Google Scholar

46 For an idiosyncratic case, see Ronald Dworkin, Freedom's Law: The Moral Reading of the American Constitution (1996). He argues that legal practitioners “instinctively treat the Constitution as expressing abstract moral requirements that can only be applied to concrete cases through fresh moral judgments,” id. at 3; and describes the “neutrality thesis,” i.e. the belief “that a Supreme Court justice can reach a decision in a difficult constitutional case by some technical legal method that wholly insulates his decision from his own most basic convictions,” as a “thesis which no one with any experience in constitutional law really believes.” Id. at 313. He goes on to say that because the crucial clauses of the Constitution “can often be read in different ways,” “any particular justice's interpretation will be dominated by his convictions” about the issues at stake. Id. at 314. Still, he distances himself from the position of “[s]ome judges” that it is “their duty” “to interpret these moral phrases according to their own views.” Id. at 337.Google Scholar