Unlike Ed, I have read the Harvard commencement speech by retired Justice David Souter that E.J. Dionne praises so highly in his column today. And I have to say that it doesn’t come close to living up to Dionne’s build-up. In fact, it’s not even clear that the speech is any kind of attack on “originalism,” let alone the demolition job Dionne thinks it is. If it was intended as an attack on originalism, one would have to say that it is an embarrassingly bad one.
Why might one doubt that Souter’s speech was meant as a critique of originalism? Well, for one thing, the word “originalism” nowhere appears in it, and neither do any of the standard expressions often used (if misleadingly in some cases) to indicate the same thing: the speech doesn’t mention “textualism,” or “intent,” or “strict construction,” or even “judicial restraint.” For another thing, when he was on the bench Souter was known to employ originalist reasoning himself on occasion. And not just in the hypocritical way of many judges, which effectively says “let’s all be true to the framers’ values in ways no one seriously thinks they would recognize.” No, Souter could really do originalism once in a while, as in his fine dissents from the Rehnquist Court’s wrongheaded sovereign immunity decisions of the 1990s. (These cases presented “dueling originalisms,” and some readers will side with Rehnquist, Scalia, et al., but Souter’s arguments were bona fide originalist efforts.) Why he would now make an open assault on an approach he sometimes practiced, I don’t know.
But if the speech is not a critique of originalism, what is it? That’s a good question, because the target of Souter’s criticism appears to be an approach to judging that no one, absolutely no one, actually holds and defends. The speech employs straw men almost worthy of Barack Obama, the current title-holder in the straw-man argument championships. Souter would attain Obama-Rama-Ding-Dong levels in the creation of straw men if only one could figure out whom he thinks he is talking about. While E.J. Dionne takes him to be demolishing the views of Justice Antonin Scalia, Souter never mentions Scalia, or anyone else who holds the view he criticizes. The most one can say is that he thinks he is criticizing those who criticize judges for “lawmaking” and “activism.” And here is what he thinks they think:
The charges of lawmaking and constitutional novelty seem to be based on an impression of the Constitution, and on a template for deciding constitutional claims, that go together something like this. A claim is made in court that the government is entitled to exercise a power, or an individual is entitled to claim the benefit of a right, that is set out in the terms of some particular provision of the Constitution. The claimant quotes the provision and provides evidence of facts that are said to prove the entitlement that is claimed. Once they have been determined, the facts on their face either do or do not support the claim. If they do, the court gives judgment for the claimant; if they don’t, judgment goes to the party contesting the claim. On this view, deciding constitutional cases should be a straightforward exercise of reading fairly and viewing facts objectively.
Ah, but things are not so simple, says Souter. The Constitution contains some “deliberately open-ended” provisions, and what’s more, it “contains values that may well exist in tension with each other, not in harmony.” Finally, there’s the not-so-simple-after-all business of assessing the relevant facts in a case; Souter urges the view that facts must “mean” something, and what they mean will be a matter of judicial choices, which can be better or worse–by which he means politically enlightened or politically benighted, evidently.
By this point Souter has described an argument no one makes in order to advance an argument that is itself amazingly weak. What he finds wanting is a wholly mechanical approach to jurisprudence that would find every case “straightforward” and easy, as long as the judges were committed to a “fair reading” of the Constitution. It’s Souter’s repeated mention of the “fair reading” approach that persuades E.J. Dionne that he is criticizing originalism, but the simplisme he describes is so far from traditional canons of jurisprudence that it bears no resemblance to originalism as practiced or defended by anyone.
And what of the counter-arguments employed by Souter to knock down this straw man? Well, it is often said as an excuse for judicial activism that the Constitution contains “deliberately open-ended” provisions. But the repeated assertion does not make it so. Take the due process clause, one of Souter’s examples. It has been melted down so many times in the judicial crucible, poured into so many new molds, and hammered and polished into so many new shapes, that it’s easily forgotten that it originally had nothing to do with courts of law striking down such substantive policy choices as prohibiting slavery, regulating working hours, restricting abortion, or banning sodomy. And why, when a seemingly “open-ended” provision is encountered, does it always seem to follow that the judges’ view of its meaning must prevail over the views of others?
Souter’s second argument is that the Constitution says things that are in tension with each other, and so judges must make choices that harmonize the competing “values.” It is true that the Constitution sets out to achieve both order and liberty, for instance. But the Constitution is itself the effort to harmonize those things, and the work of judging, in cases that encounter the tension between them, is to figure out what the Constitution is itself saying to us about their relation to each other. Only the originalist is interested in doing this work. Is David Souter interested? It seems not, since he praises the justices (in the Pentagon Papers case, his example here) for making “a choice [that] must be made” and mocks the idea that “all of constitutional law lies there in the Constitution waiting for a judge to read it fairly.” His judges are politicians–just more detached ones, answerable to no one but themselves, and wiser even than the Constitution they pretend to interpret.
The third argument in Souter’s speech is that the judges must choose what the facts in a case mean, and that this inescapably moral judgment leverages their decisions this way or that. This is where Souter discusses Brown v. Board of Education, and implicitly makes the argument Dionne gets so much mileage out of–that if an approach to judging can’t come out where Brown came out, there’s something wrong with the approach. But Souter really botches this argument, if that’s what he meant to say. Because the judges of 1896 (who decided Plessy v. Ferguson) could personally remember when slavery still existed, he says, they thought that the “equality” of separate railroad cars was enough to satisfy the equal protection clause. But because the judges of 1954, who decided Brown, were aware of the subsequent history of segregation’s progressively intolerable injustices, they thought “separate but equal” schools did not satisfy the same constitutional principle. And if I understand Souter correctly (not an easy thing with this mess of a speech), he thinks that both Plessy and Brown were therefore correct! Or perhaps “correct” is a word he would reject as too simplistically old-fashioned. He might instead say “as progressively enlightened as we could have reason to expect for men of their age, and therefore constitutionally legitimate.”
Except that in the Plessy case, there is this inconvenient fact of Justice John Marshall Harlan’s famous dissent–which Souter never mentions. He was, evidently, more enlightened than his colleagues. But was he right? Oh now, Justice Souter might say, don’t go bringing up that foolish “fair reading of the Constitution” stuff. Haven’t I just been telling you that things are more complicated than this? Okay, we won’t go there. Was Harlan just sadly ahead of his time, going where the rest of the country wasn’t ready to go yet? Yeah, that may be it. But judges must decide cases in the here and now, and–sorry to be so slow about this, folks–they must get them right to the best of their ability. How does Souter’s argument about judges making a moral judgment, fit for their own age, of the meaning of the facts in a case, help a judge to decide this case, here in front of him, today? What is the moral judgment about a set of facts’ “meaning” that would be appropriate for, say, June 2010? Well, who the dickens can say? This is just about the least useful set of reflections on the art of judging that anyone with judicial experience has ever set down on paper.
Not content with knocking down a view no one holds with arguments that he should be ashamed to make, Souter pauses near the end of his speech to psychoanalyze his nonexistent opposite numbers who just want a “fair reading” of the Constitution applied to plain facts. The problem seems to be a “basic human hunger for . . . certainty and control,” you see. Souter appears to attribute the view he criticizes–whoever these people are–to a kind of childishness that grownups like himself have luckily escaped, evidently by reading lots of Oliver Wendell Holmes. The condescension here is astounding, and so is the projection. For it is really Souter, and others who find solace in the imperial power of philosopher-judges, who are filling a need for certainty, control, and simplicity. The rest of us will take the messy chaos of more democracy, and more above-board politics, over David Souter’s wise jurists any day of the week.