Posner, Scalia e Hertzberg.

Judges of the higher American courts are generally picked from the upper tail of the population distribution in terms of age, education, intelligence, disinterest, and sobriety. They are not tops in all these departments but they are well above average, at least in the federal courts because of the elaborate pre-appointment screening of candidates for federal judgeships. Judges are schooled in a profession that sets a high value on listening to both sides of an issue before making up one’s mind, on sifting truth from falsehood, and on exercising a detached judgment. Their decisions are anchored in the facts of concrete disputes between real people. Members of the legal profession have played a central role in the political history of the United States, and the profession’s institutions and usages reflect the fundamental political values that have emerged from that history. Appellate judges in nonroutine cases are expected to express as best they can the reasons for their decision in signed, public documents (the published decisions of these courts); this practice creates accountability and fosters a certain reflectiveness and self- discipline. None of these things guarantees wisdom, especially since the reasons given for a decision are not always the real reasons behind it. But at their best, American appellate courts are councils of wise elders and it is not completely insane to entrust them with responsibility for deciding cases in a way that will produce the best results in the circumstances rather than just deciding cases in accordance with rules created by other organs of government or in accordance with their own previous decisions, although that is what they will be doing most of the time.”

POSNER, Richard. Pragmatic Adjudication. In:  Cardozo Law Review vol. 18 (1996). 11p. Publicado também em: POSNER, Richard. The Problematics of Moral and Legal Theory. Cambridge, MA: Harvard University Press, 1999. 257p.

“It certainly cannot be said that a constitution naturally suggests changeability; to the contrary, its whole purpose is to prevent change— to embed certain rights in such a manner that future generations cannot readily take them away. A society that adopts a bill of rights is skeptical that ‘evolving standards of decency’ always ‘mark progress,’ and that societies always ‘mature,’ as opposed to rot.”

SCALIA, Antonin. A Matter of Interpretation: Federal Courts and the Law. Princeton: Princeton University Press, 1997. 40p.

But in the public square the Constitution is beyond criticism. The American civic religion affords it Biblical or Koranic status, even to the point of seeing it as divinely inspired. It's the flag in prose. It's something to be venerated. It's something to be preserved, protected, and defended, as the President swears by God to do. In the proper place (a marble temple in Washington), at the proper times (the first Monday in October, et seq.), and by the proper people (nine men and women in priestly robes), it is to be interpreted, like the entrails of a goat.

HERTZBERG, Hendrik. Framed Up. In: The New Yorker. Publicado em 29 de julho de 2002.