Today is Wednesday, February 6, 2002, we are continuing today the oral history
interview of Judge Laurence Silberman. The interviewer is still Ray Rasenberger.
MR. RASENBERGER: Judge Silberman today I think we can wind this long set
of interviews up. We have been through your distinguished and varied career right up to the time
you had gone onto the bench, and of course that’s where you have been since 1985. And I am
sure any reader would be interested in your views on many legal issues, and I am sure any reader
can find those views in your written opinions and so we need not delve into them, but as I look at
some of your writings, and opinions, and speeches, there are certain themes that seem to emerge
and I thought I’d ask you if you would like to expound a little bit on some of them. They come
under various labels. One of them, for example, is called Judicial Activism or Judicial Restraint
whichever side of the coin you are coming at it from. And some of your opinions deal with that.
I call your attention particularly to a recent one I noticed that was issued on December 21, 2001,
and your concurring opinion ends with a remark that, “Supreme Court decisions particularly in
the last century have resembled more the periodic declarations of a continuing constitutional
convention than efforts to read the Constitution as a body of positive law.” Would you like to
sort of summarize your views on activism, the views that underlie that particular statement,
anything else you want to say on this subject that you either have said or haven’t said already?
JUDGE SILBERMAN: Well, I have written a lecture which I gave at various law
schools in 2000, the title of which is “Will Lawyering Strangle Democratic Capitalism: A
Retrospective.” That was the title of an article I wrote back at AEI in 1977 or ’78 and this was an
opportunity to look back 25 years, approximately, and see how the trends that I decried in that
original speech had either continued or discontinued. I concluded they had continued, in that
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