Justice Souter's Class
By LINDA GREENHOUSE
NY Times Opinionator: Une 5, 2010
Justice David H. Souter left the Supreme Court nearly a year ago without
really saying goodbye. There were no pre-retirement interviews of the sort
that Justice John Paul Stevens gave to several journalists this spring.
There were no farewell press conferences like those that several justices
who retired during the 1980's and 1990's were willing to endure for the sake
of placing their own codas on their Supreme Court careers.
And since Justice Souter has decided to keep his papers closed to the public
for 50 years, few people in a position actually to remember his Supreme
Court tenure (1990-2009) will be able to explore the archive and learn what
conclusions this most private of public figures drew from his part in two
decades of profound debate about the role of the court and the meaning of
the Constitution.
So it was with a mixture of relief and something close to joy that I
listened last week to David Souter's commencement address at Harvard, his
undergraduate and law school alma mater, which awarded him an honorary
degree. (I was in the audience as a member of Harvard's Board of Overseers;
like the thousands of others seated at the outdoor gathering, I had no idea
what to expect.)
As a matter of immediate impact, this was not a speech to rival Secretary of
State George C. Marshall's announcement, in his Harvard commencement address
in 1947, of his plan for the reconstruction of postwar Europe. Nor is it
likely to attain the resonance of Winston Churchill's declaration the
previous year, upon receiving an honorary degree at Westminster College in
Fulton, Mo., that the cold war had begun and that "an iron curtain has
descended" across Europe.
But for those who care about the Supreme Court, Justice Souter served up
some rich fare: his own vision of the craft of constitutional interpretation
and a defense of the need for judges to go beyond the plain text - what he
called the "fair-reading model" - and make choices among the competing
values embedded in the Constitution. Doing this was neither judicial
activism nor "making up the law," he said; rather, it was the unavoidable
"stuff of judging," and to suppose otherwise was to "egregiously" miss the
point of what constitutional law is about.
His stance was modest - "Over the course of 19 years on the Supreme Court, I
learned some lessons about the Constitution of the United States," he
began - but the prose was muscular, in contrast to the writing style in many
of his opinions. The "notion that all of constitutional law lies there in
the Constitution waiting for a judge to read it fairly" is not only
"simplistic," he said; it "diminishes us" by failing to acknowledge that the
Constitution is not just a set of aphorisms for the country to live by but a
"pantheon of values" inevitably in tension with one another. The Supreme
Court may serve no higher function than to help society resolve the
"conflict between the good and the good," he suggested:
A choice may have to be made, not because language is vague, but because
the Constitution embodies the desire of the American people, like most
people, to have things both ways. We want order and security, and we want
liberty. And we want not only liberty but equality as well. These paired
desires of ours can clash, and when they do a court is forced to choose
between them, between one constitutional good and another one. The court has
to decide which of our approved desires has the better claim, right here,
right now, and a court has to do more than read fairly when it makes this
kind of choice.
Justice Souter named no contemporary names. He did not mention Justice
Antonin Scalia, whose "originalist" doctrine of constitutional
interpretation made inroads in recent years, most notably in the 2008
decision, from which Justice Souter dissented, declaring an individual right
to gun ownership under the Second Amendment. But I have to think he had
Justice Scalia in mind when he observed that "behind most dreams of a
simpler Constitution there lies a basic human hunger for the certainty and
control that the fair-reading model seems to promise."
Justice Scalia has acknowledged as much himself, in a famous law review
article he published in 1989, three years after he joined the court. Titled
"The Rule of Law as a Law of Rules," the article in The University of
Chicago Law Review asserted that judges need clear rules, rather than
malleable balancing tests of the sort favored in modern constitutional law,
in order to avoid straying into the realm of personal preference. By
announcing a clear rule of decision, Justice Scalia wrote, "I not only
constrain lower courts; I constrain myself as well." He added, "Only by
announcing rules do we hedge ourselves in."
Justice Souter said he well understood, and indeed had shared, that "longing
for a world without ambiguity, and for the stability of something unchanging
in human institutions." But he said he had come to accept and even embrace
the "indeterminate world" in which a judge's duty was to respect the words
of the Constitution's framers "by facing facts, and by seeking to understand
their meaning for the living."
Neither did he refer to his own successor, Justice Sonia Sotomayor, who
during her Senate confirmation hearing last summer professed her "rigorous
commitment to interpreting the Constitution according to its terms," and to
deciding cases "with the law always commanding the result in every case."
But he did note that with another confirmation season approaching, "we will
as a consequence be hearing and discussing a particular sort of criticism
that is frequently aimed at the more controversial Supreme Court decisions:
criticism that the court is making up the law, that the court is announcing
constitutional rules that cannot be found in the Constitution, and that the
court is engaging in activism to extend civil liberties."
He framed the speech as a rebuttal to those criticisms and he discussed in
some detail two historic cases, both from decades before his own tenure. One
was the Pentagon Papers case from 1971, which required the court to weigh "a
conflict of approved values": the government's claim that national security
required publication to be suppressed versus the claims of The New York
Times and The Washington Post that the First Amendment gave them the right
to publish the government's secret history of the war in Vietnam. The First
Amendment prevailed.
The other decision was Brown v. Board of Education, the 1954 school
desegregation case, which Justice Souter invoked for a different point.
Contrasting Brown with Plessy v. Ferguson, the 1896 decision that
interpreted the 14th Amendment's guarantee of equal protection as permitting
"separate but equal" public facilities for blacks and whites, Justice Souter
said the difference between the two was not one of competing constitutional
values but of "the subtlety of constitutional facts."
The justices in both cases intended to uphold the guarantee of equal
protection, he said, but diverged in how they understood the meaning of
legally mandated separation. To the post-Civil War generation that upheld
segregated railroad cars, "the formal equality of an identical railroad car
meant progress" in light of how recently slavery had been abolished, he
noted, while by 1954, a court that was still composed entirely of white men
understood that enforced segregation "carried only one possible meaning," a
constitutionally unacceptable judgment that blacks were inferior to whites.
In other words, Justice Souter continued, the meaning to the justices of the
fact of segregation had changed. "The meaning of facts arises elsewhere and
its judicial perception turns on the experience of the judges, and on their
ability to think from a point of view different from their own," he said,
providing a pretty good working definition of empathy. "Meaning comes from
the capacity to see what is not in some simple, objective sense there on the
printed page."
"Was it activism to act based on the current meaning of facts that at a
purely objective level were about the same as Plessy's facts 60 years
before?" he asked. "So much for the assumption that facts just lie there
waiting for an objective judge to view them."
Justice Souter could, of course, have gone on to say more - to leave the
safe zone of Brown v. Board of Education and, for example, to offer some
thoughts on how a changed judicial appreciation of facts led the court seven
years ago, in Lawrence v. Texas, to repudiate a recent precedent and to
begin to build a constitutional framework for gay rights. There are
obviously many current controversies, from abortion to criminal sentencing
to the war on terrorism, that fit Justice Souter's construct and on which a
more adventurous retired justice might have been tempted to comment.
I wrote earlier in this column that I responded to Justice Souter's speech
with feelings of relief and joy. The relief came from seeing that this
thoughtful man, a young 70, has not retreated fully into the privacy he
cherishes, but was willing after all to share his wisdom. The joy came from
supposing that he might keep on doing it.
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