Justice Souter Speech at Harvard

I had missed this, but retired Justice Souter gave the commencement address at Harvard a couple of weeks ago. Dahlia Lithwick called it "remarkable"
and Linda Greenhouse said it served up "some rich fare". Even religious scholar, Stephen Prothero at CNN called it "a tour de force".

Here's the Text of Justice David Souter’s speech and it really is worth a read. I'm not sure I would have loved it as a graduate in the audience, but I really like it now. Without saying so explicitly he attacks originalism (and therefore Scalia) and much of the rhetoric used in discussing Supreme Court nominations; interpreting the law and not making the law, calling balls and strikes, and hearing the facts and applying the law.

Instead he explains that most cases that come before the court are difficult because involve conflicting passages of the constitution or involving subtle meaning of terms. He uses two example cases, that of the Pentagon Papers (freedom of the press vs the security of the nation) and Brown v. Board of Ed which overturned Plessy v. Ferguson (can separate be equal?). Here are some passages on the first example:

"The Constitution has a good share of deliberately open-ended guarantees, like rights to due process of law, equal protection of the law, and freedom from unreasonable searches. These provisions cannot be applied like the requirement for 30-year-old senators; they call for more elaborate reasoning to show why very general language applies in some specific cases but not in others, and over time the various examples turn into rules that the Constitution does not mention.

But this explanation hardly scratches the surface. 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. Another reason is that the Constitution contains values that may well exist in tension with each other, not in harmony. Yet another reason is that the facts that determine whether a constitutional provision applies may be very different from facts like a person’s age or the amount of the grocery bill; 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."

"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."

And here's what he says about Brown, "As I’ve said elsewhere, the members of the Court in Plessy remembered the day when human slavery was the law in much of the land. To that generation, the formal equality of an identical railroad car meant progress. But the generation in power in 1954 looked at enforced separation without the revolting background of slavery to make it look unexceptional by contrast. As a consequence, the judges of 1954 found a meaning in segregating the races by law that the majority of their predecessors in 1896 did not see. That meaning is not captured by descriptions of physically identical schools or physically identical railroad cars. 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. Meaning comes from the capacity to see what is not in some simple, objective sense there on the printed page. And when the judges in 1954 read the record of enforced segregation it carried only one possible meaning: It expressed a judgment of inherent inferiority on the part of the minority race."

And here's his attack on originalism and the notion that justices should merely interpret law and not make it. "The fair reading model misses that, but it has even more to answer for. Remember that the tensions that are the stuff of judging in so many hard constitutional cases are, after all, the creatures 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 one high value and another reflects our confidence that a way may be found to resolve it when a conflict arises. That is why the simplistic view of the Constitution devalues our aspirations, and attacks that our confidence, and diminishes us. It is a view of judging that means to discourage our tenacity (our sometimes reluctant tenacity) to keep the constitutional promises the nation has made."

Now if only this view (which isn't Souter's alone) had a catchy name like "Originalism" does.

Also a few weeks ago, Denise Lavoie for the AP wrote Justice Souter may be retired, but he still works. "At the age of 70, he is unwilling to hang up his robe and is hearing cases one or two days a month for the 1st U.S. Circuit Court of Appeals in Boston, which handles federal appeals for Maine, Massachusetts, New Hampshire, Rhode Island and Puerto Rico...But Mark Tushnet, a Harvard Law School professor who has written extensively about the Supreme Court, said Souter is working more often than most retired justices. He said Souter may enjoy the difference in the appellate work compared with the Supreme Court...He also has been working on a New Hampshire task force formed to improve civics education in public schools."