Jones v. Souter
Former U.S. Supreme Court Justice David Souter recently gave an excellent speech at Harvard University’s 359th commencement ceremony. I don’t call it excellent because I agree with what he said. Actually, I vehemently disagree with virtually everything he said. Instead, it is an excellent speech because it clearly explains and defends Court activism and liberalism. It differentiates his position, what many people would brand activism and legislating from the bench, from conservatism, which is what he identifies as a simple (and to him, a simplistic) “fair reading of the Constitution.” Such speeches are needed if political debate is to move from calculated struggles between predetermined camps to something better. If persuasion, not activism, is to be the most powerful political agent, then we will need many more speeches like David Souter’s. Please read what he said. You can find it here.
But in the spirit of persuasion, I must disagree with the Honorable Justice Souter, and explain myself in response. I feel quite nervous pitting myself against former Supreme Court Justice who now has an honorable doctorate from Harvard University to add to his two previous Harvard degrees, but I believe I can and I must. I can do so because the extremely implausible chance of Justice Souter ever noticing me makes up for my relative inferiority, and I must do so because I am too impatient to wait for an angry Justice Scalia to rumble out of wherever he lives to meet Souter’s challenge.
While you must read Justice Souter’s speech to get the clearest picture of his argument, I can sum up his main points here. Souter’s first defense against a straight reading of the Constitution is the claim that constitutional questions that come before the Court are too complex to be solved by simply turning to the appropriate page in the Constitution. Many of the provisions of the Constitution are open-ended and ambiguous. Certain judgments must be made about vague phrases like “due process” and “unreasonable searches.” As Souter explains, “over time the various examples turn into rules that the Constitution does not mention.”
Souter’s second point is that competing claims in the Constitution make a flexible view of wording necessary. He cites the famous Pentagon Papers case, in which the government tried to prevent several classified documents from being published in the Washington Post and New York Times. In that case, the government argued that while the Constitution clearly stated that there would be “no law” abridging the freedom of the press, a severe enough threat to national security would negate that command. In such a case, “no law” would not mean “no law.” It would need flexibility to balance competing interests of the nation for liberty and security. While the government lost this particular case, the Supreme Court accepted the line of reasoning. If the risk of danger is great enough, if the D-Day plans for the invasion of Normandy were to be published, if nuclear holocaust were an imminent outcome of a particular press revelation, then the government would be entirely justified in preventing such a publication. In such case, “no law” no longer means “no law.”
Souter’s final point is that evolving standards of society necessitate a flexible interpretation of words. His key example is the change of decision from Plessy v. Ferguson to Brown v. Board of Education. Few of the facts changed during the sixty years between these cases, but the outcomes could not have been more different. Souter’s explanation is worth quoting at length.
While Plessy was about railroad cars and Brown was about schools, that distinction was no great difference. Actually, the best clue to the difference between the cases is the dates they were decided, which I think lead to the explanation for their divergent results… [T]he 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.
This evolving standard of progress is what allows the 1954 Court to make a decision at odds with the 1896 Court without being an activist judiciary.
These three points are crucial to this debate, and they show the degeneration of agreement between conservatism and liberalism from general harmony to complete disagreement about judicial philosophy, the proper function of the Supreme Court, and the very nature of the world. But let’s start with the agreement.
Souter’s first point is that constitutional questions are complicated and require complicated answers. One cannot simply look up the appropriate page in the Constitution like a manual. Rules do arise that the Constitution does not mention. In this, he is undoubtedly correct. That is what the practice of common law is. The point is so obvious, it almost unnecessarily made. Defining what words like “unreasonable” mean in specific situations is precisely what the practice of common law is. Few people have ever heard of the Lemon Test, of strict scrutiny, or of prior restraints, but they are the tools that have been used in our legal system since before the United States ever existed.
The second point is not as harmonious between our two camps. Souter has taken great pains to show that the words “no law” in the Constitution do not mean “no law” in our legal system, and for good reason. But Souter seems to believe that disbelieving the meaning of the phrase “no law” is the only way to make needed compromises in order to protect the public. But this is simply not the case. There are other parts of the Constitution that explicitly state the goals of promoting the common defense, most notably in the preamble. Instead of taking the meaning of “no law” lightly and basing the restrictions of government upon a judge’s sense of what is needed at the moment, one can simply take the other words of the Constitution at face value, as well.
It is strange the Souter sees a conservative view of the Constitution as simplistic, because it is actually much more complex than the living Constitution view. To continue Souter’s the example of the Pentagon Papers case, it is clear that the phrase “Congress shall make…no law restricting the freedom of speech, or of the press” in the first amendment is very clear in what it says. That is why the documents that the government wanted to prevent from being published were allowed to be published. The goal of promoting the common defense is also important. But as a general constitutional goal, and not a specific statement of constitutional law, it would take extraordinary circumstances for it to supersede the explicit imperative of the First Amendment. That is why the Court cited extreme circumstances like a nuclear holocaust or the endangerment of over 2 million servicemen at Normandy as the bar for a constitutional phrase to overcome the First Amendment.
The straight reading of the Constitution requires an extensive and complex hierarchy of rights, principles, and restrictions that must be balanced against one another when they meet. A conservative judicial philosophy is a complex and orderly web of values and precedents that only appears simple because of the predictable nature words have when they retain their meaning. A liberal judicial philosophy is sporadic and the appearance of complexity only comes from the unpredictable ground on which it is built. It is based on justices’ opinions about the current society’s opinion about a given standard at a particular time. In the end, the decision rests on the judge’s personal assessment of a situation. Subjective decisions are only complex in appearance.
Souter’s final point is his strangest. From the quote above, it seems that Justice Souter thinks that the 1896 Court made the Plessy segregation decision because segregation was a positive step on the road to progress. It assumes that progress was the express goal of the 1896 Court. Strangely, he seems to see Plessy v. Ferguson as morally acceptable, or at least morally neutral, because the Court thought it was something a little better for blacks than the condition the justices could remember: slavery. As long as there is some sort of progress that matches the changing standards of society, then the decisions of the Court can be justified.
I find this reasoning frightening. It is also directly contradictory to a conservative view of judicial philosophy and the world. Souter believes that changing standards of decency demand a flexible reading of the Constitution. A conservative view says that changing standards of decency demand a rigid reading of the Constitution, because society’s standards can either progress or deteriorate. After a brief moment of moral clarity when the federal government stated in the 14th Amendment that no state should deny any person within the United States equal protection under the law, society deteriorated and did just that with the institution of segregation. The decision in Brown did not say, “While Plessy was a step in the right direction and beneficial in comparison to the previous state of affairs, new steps needed to be taken for society to progress.” No, Brown said that separate is inherently unequal. Brown said that the reasoning of Plessy v. Ferguson is wrong. Such reasoning believes that the words “separate” and “equal” have meaning and that those meanings are opposed to one another.
It is only a conservative judicial philosophy that can openly and honestly call something wrong, as was done in Brown v. Board of Education. The liberal view can only say something has not progressed far enough, as Justice Souter did with Plessy v. Ferguson. The reason this is exclusive to conservatism, is that conservatism believes that words have fixed meanings, those fixed meanings can be organized in a Constitution which creates a standard, and competing claims can be measured against that standard using logic, argument, and reason to come to a conclusion of truth or falsehood. There are many reasons that one can miss truth or falsehood: facts can be confused, motives can be corrupted, and the constraints of a society can prevent someone from acting on what they know is right. But the standard exists, and it is waiting to be found. A liberal judicial philosophy rests on shifting ground, on a standard of a judge’s opinion about what society thinks at a given time. None of these judges seem to wonder if their view of society’s opinions is not reflective of society’s opinions, and nobody has even thought about asking if society thinks something that it shouldn’t.
One fault of Souter’s argument is that he does not seem to understand a conservative worldview. Souter seems to think that those in favor of a fair reading of the Constitution are merely reacting to stimuli that they do not understand. Souter thinks that the intricate nature of case law and the largely unknown practices of constitutional tests are the source of conservative frustration with the high court. This is simply not the case. Conservatives do not reject confusing language or precedents. Instead, they reject the Court’s tendency to abjure its responsibility to apply the Constitution to particular cases. Conservatives are angry because of instances like Roe v. Wade, where the Supreme Court refused to apply the 14th Amendment’s protection of life by stating, “We need not resolve the difficult question of when life begins….the judiciary, at this point in the development of man’s knowledge, is not in a position to speculate as to the answer” (410 U.S. 159). One may be tempted to think that Justice Blackman, by stating that the judiciary “at this point” was unable to speculate as to when life begins, was taking a page from Souter’s idea about Plessy of incremental societal progress. This is impossible to believe, however, because the remainder of the decision not only speculates, but clearly defines when life begins by dividing pregnancy into trimesters and mandating when abortions are available to be regulated based on the mother’s right to privacy. It is not that conservatives do not understand the intricate nature of case law. Conservatives instead clearly perceive that the Court demolished an express principle written in the Constitution about the protection of life and raised a principle about the right to privacy to a greater level of importance even though the phrase does not appear in the Constitution and even though the legal principle of privacy has at best a morally questionable application to cases involving the unnatural end of a human life. The hierarchy of rights and values was destroyed and in its place was erected a standard based not on precedent or case law or the constitution, but on the judge’s opinion of the importance of privacy. The destruction of the hierarchy of rights with the Constitution at the top is what conservatives get angry about.
A shift from concrete standards, where words have meaning and positions are either right or wrong, can come quickly like it did in Roe v. Wade. It can also come slowly like it did in Kelo v. City of New London. In Kelo, the city of New London, Connecticut was allowed to seize land from property owners and give it to a private developer using the clause in the Constitution that allows government to take land for “public use.” Despite Kelo’s controversy, it was simply the last in a string of cases which established that a taking is for public use if the government believes that it will be for the public good. That case may have been built on a string of previous decisions, but it they reached a point where words of the Constitution, which have a real and concrete meaning, were at odds with the case law. In such a case, the Constitution should take preference.
Souter was one of the five justices who sided with the city in the Kelo case. It was a case decided by a strong tide of case law. Souter is by no means ignorant of case law. He was a Supreme Court justice, for goodness sake. If one reads his writing and his argument, it is clear he does not lack reason, either. The divide between conservative and liberal judicial philosophy is not based on knowledge or reason. It is rooted in the conservative’s belief that words have a fixed meaning, and that legislators who write laws with words mean what they say and not what we want to think they said. The liberal belief says that it is better to adjust what legislators write to create better meanings for a changing society. The fault of judicial liberalism is its conviction of its own superiority over all who have come before.
