Posner on Heller: Is it All Politics?
The New Republic has posted an interesting essay by Richard Posner criticizing Justice Scalia's opinion in DC v. Heller. According to Posner, Heller "is questionable in both method and result, and it is evidence that the Supreme Court, in deciding constitutional cases, exercises a freewheeling discretion strongly flavored with ideology." A taste:
The true springs of the Heller decision must be sought elsewhere than in the majority's declared commitment to originalism. The idea behind the decision--it is not articulated, of course, and perhaps not even consciously held--may simply be that turnabout is fair play. Liberal judges have used loose construction to expand constitutional prohibitions beyond any reasonable construal of original meaning; and now it is the conservatives' turn.

I cannot discern any principles in the pattern of the Supreme Court's constitutional interpretations. The absence of principles supports the hypothesis that ideology drives decision in cases in which liberal and conservative values collide. If loose construction produces a conservative limitation on government, most conservatives will support it and most liberals will oppose it; and if it produces a liberal limitation on government, most liberals and conservatives will switch sides.
  Posner is ridiculously wrong, of course: The fundamental truth of constitutional law is that Justices who agree with me are divining the true Constitution, while the rest are political hacks twisting the document to suit their policy preferences. Thus, my side is always principled.

  Thanks to Ed Whelan for the link. Ed also has his own comments on Posner's review over at Bench Memos.