David H. Souter, the perennially reticent, famously dorky former justice of the United States Supreme Court, gave his country a blessing of a speech
last Thursday at Harvard University's commencement. In his typical polite, patient, plodding style, he offered to the (probably bored and underappreciative) crowd an extraordinary gift. He delivered to them a thoughtful but firm answer both to the lazy politicians who decry "judicial activism" and to "originalists
," like Justices Clarence Thomas and Antonin Scalia, who see the Constitution as a contract that must be interpreted only in light of what its original drafters wrote and are known to have meant at the time.
Criticizing what he called the "fair reading model" of constitutional interpretation, Justice Souter's extraordinarily candid and accessible remarks will be part of law school discussions and debates for years to come. It's too early to tell if we've just witnessed the re-incantation of Oliver Wendell Holmes
' "Common Law" (circa
1881. "The life of the law has not been logic; it has been experience") or Benjamin Cardozo
's "Nature of the Judicial Process" (circa 1921. "There, before us
, is the brew." But, despite silly, inaccurate headlines like this one
, (Souter did not
defend "judicial activism") it wouldn't surprise me if this speech turns into a book and the book into a vital part of our ageless constitutional conversation.
It was indeed a speech -- one guest called
it "inspiring in its own way" -- that old-school Republican-appointed jurists
(like Souter, Sandra Day O'Connor and the retiring Justice John Paul Stevens, for example) will appreciate and applaud. It is a speech that the politicians of the Senate Judiciary Committee will cuss and discuss before they commence later this month the Supreme Court confirmation hearing for Solicitor General Elena Kagan. Conservatives will almost certainly call it drivel. But most everyone else will likely concede that the Constitution that Justice Souter describes is the Constitution with which they are most familiar and comfortable.
It is not news, mind you, that Justice Souter disagrees with the radical conservatism of his former fellow Republican appointees on the high court. Nominated by President George H.W. Bush, Justice Souter was a widely whined
disappointment to "originalists" and other conservatives when he got onto the court and began, with growing frequency, to disagree with their doctrine. By the end of his tenure, he was a reliably liberal vote -- more liberal, some believe, than the woman, Justice Sonia Sotomayor, who last year was selected to replace him. He's had this speech in him for many years, and has even expressed himself on the topic
before, but this surely is the blossoming, the coming-out party for Souter as judicial philosopher.
Constitutional interpretation is hard, Justice Souter argued, for the very reasons that the Constitution is great and still in force so many years after it was enacted. "The reasons that constitutional judging is not a mere combination of fair reading and simple facts extend way beyond the recognition that constitutions have to have a lot of general language in order to be useful over long stretches of time," Justice Souter said." Another reason," he said, "is that the Constitution contains values that may well exist in tension with each other, not in harmony." Yet another reason, he added, is that "constitutional facts may require judges to understand the meaning that the facts
may bear before the judges can figure out what to make of them."
"[T]he Constitution is no simple contract," the justice said, "not because it uses a certain amount of open-ended language, but because its language grants and guarantees many good things, and good things that compete with each other and can never all be realized, altogether, all at once." He then explained: "The explicit terms of the Constitution, in other words, can create a conflict of approved values, and the explicit terms of the Constitution do not resolve that conflict when it arises."
"A choice may have to be made," the former justice continued, "not because language is vague but because the Constitution embodies the desire of the American people, like most people, to have things both ways . . . Should the choice and its explanation be called illegitimate law making? Can it be an act beyond the judicial power when a choice must be made and the Constitution has not made it in advance in so many words? So much for the notion that all of constitutional law lies there in the Constitution waiting for a judge to read it fairly."
Indeed, Justice Souter said, "The fair reading model fails to account for what the Constitution actually says and fails just as badly to understand what judges have no choice but to do. The Constitution is a pantheon of values, and a lot of hard cases are hard because the Constitution gives no simple rule of decision for the cases in which one of the values is truly at odds with another.
"For the tensions that are the stuff of judging in so many hard constitutional cases are, after all, the products of our aspirations to value liberty, as well as order, and fairness and equality, as well as liberty. And the very opportunity for conflict between the good and the good reflects our confidence that a way must be found to resolve it when a conflict arises." Quite an uplifting sentiment, yes, from a man Washington's Establishment deemed perpetually "dour" because it could never quite figure him out?
"That is why," the Man from New Hampshire continued, "the simplistic view of the Constitution (the originalist/fair reading model) devalues those aspirations, and attacks that confidence and diminishes us. It is a model of judging that means to discourage our tenacity (our sometimes reluctant tenacity) to keep the constitutional promises the nation has made." No, I don't think nominee Kagan (and fellow Harvard Law alum) has the guts to cite Justice Souter's speech when she offers the Judiciary Committee her opening remarks. And, no, with few notable exceptions, I didn't see the speech covered much before or during the long holiday weekend.
That's a crying shame; because this debate over what our Constitution is and is not truly is
worthy of the nation's attention and respect. Thanks to Justice Souter, soft-spoken as ever, it's just been given worthy new breath. And, knowing Justice Scalia, there is quite likely quite soon to be a quite loud retort.