Now He Tells Us!

As the Senate weighs the nomination of Elena Kagan to the Supreme Court, the interest shown in the 46,000 pages recently released by the Clinton Presidential Library reminds us that confirmation is a one-shot deal.  Once confirmed, with very rare exceptions, a Justice sits for as long as he or she likes. So find out what you can now. Later is too late.

When nominated to the Supreme Court in 1990, David Souter underwent scant scrutiny. Although he had served as a state judge in New Hampshire for twelve years, he had little or no record on federal issues. President George H.W. Bush nominated him on July 25, 1990, only three months after he had been confirmed to the First Circuit. In announcing the nomination, Bush assured the country that he had no idea where Souter stood on the hot-button issues of the day, abortion and affirmative action. Souter became known as the "stealth candidate."

Souter served on the Court for nineteen years. Only now, one year after his resignation, has he spoken out on his judicial philosophy. Many of the ninety senators who voted to confirm him in 1990 might have appreciated twenty years' advance notice of his speech.

On May 27, Souter delivered the commencement address at Harvard. He attacked originalism, the judicial philosophy which teaches that judges should interpret the Constitution according to the original understanding of the framers and that judges should resist the temptation to inject their own views and values into the process. Souter argued that while an originalist approach may work with simple, clear-cut constitutional provisions -- he mentioned the thirty-year age eligibility requirement for senators as an example -- it is "unrealistic" when applied to "deliberately open-ended guarantees, like rights to due process, equal protection of the law, and freedom from unreasonable searches." In those areas, Souter maintained, the Constitution contains clashing values: "The Constitution embodies the desire of the American people, like most people, to have things both ways." Of course, they can't. So judges are "forced to choose between one constitutional good and another one." 

Souter argued that originalism "egregiously misses the point" of judging, which is to "address the constitutional uncertainties ... by seeking to understand their meaning for living people." To follow the originalists' approach is not only bad judging, but it is somehow unpatriotic:

The simplistic view of the Constitution [i.e., interpreting it according to the framer's intentions] devalues our aspirations, and attacks our confidence, and diminishes us.  It is a view of judging that means to discourage our tenacity ... to keep the constitutional promises the nation has made.

There have been many justifications for departing from the original intentions of the framers in construing the Constitution. Some have argued that the framers' original understanding of the document is unknowable. Others have argued that their understanding is knowable but irrelevant since the Constitution should change as society changes. Still others have even argued that originalism is spurious because the Constitution is not law.

Souter's rationale  -- that the framer's original understanding may be disregarded because the Constitution is inherently self-contradictory -- is novel. More than a century ago, Justice John Marshall Harlan (more on him later) famously asserted that "the Constitution is color-blind." At Harvard, Souter said, in effect, that the Constitution is logic-blind.

Almost as soon as Souter took his seat, liberal commentators were swooning with admiration, greeting the address as an intellectual riposte to the pronouncements of Justice Antonin Scalia. E.J. Dionne, writing in the New Republic, called the address "the philosophical shot heard 'round the country. ... Now, thanks to Souter's commencement address, Scalia's critics have fighting words of their own." Linda Greenhouse of the New York Times confided that she listened to the speech "with feelings of relief and joy." Andrew Cohen, blogging in, proclaimed it "a blessing of a speech ... an extraordinary gift," and predicted that it "will be part of law school discussions and debates for years to come.

They discuss many things at law schools, some of which are silly, so Cohen may well be right. But I suspect that originalism's enemies will prefer other rationales to support their theories.

Souter's rationale amounts to nothing more than a non-sequitur. Of course, the Constitution carries conflicting "constitutional goods." The framers, steeped in the credos of natural rights and limited government, understood that the best way to constrain government was to build internal tensions into its mechanism like in a fine watch. And so they designed checks and balances, and separation of powers. 

But internal tensions, while they may make the task of inferring the authors' original understanding more challenging, furnish no justification for rejecting those understandings and substituting those of others. Certainly, there is no evidence that the authors of the Constitution, or of its 27 amendments, included those tensions to free judges to impose their own values when reconciling the tensions, or to search "for their meaning for living people." No framer, no amendment author ever said, "Let's make our language so internally inconsistent that judges like David Souter will have no alternative but to impose their own values when construing our text."

The evidence from the Philadelphia Convention of 1787 was exactly the opposite. The delegates wanted to make their product as clear and unambiguous as possible so that later readers would have no trouble following it. In September, when the substantive work was complete, they selected a "Committee of Style and Arrangement." As with any difficult contract negotiations, the Convention's work was the result of debate and compromise. The Committee, including among others Gouverneur Morris, Alexander Hamilton, and James Madison, was assigned the task of fashioning that work into an intelligible and polished document. The 23 articles of the document were condensed into seven. Morris later wrote of their product: "Having rejected redundant and equivocal terms, I believed it to be as clear as our language would permit." Caleb Strong, a Massachusetts delegate, confirmed that the framers wanted no ambiguity in the document: "I think the whole of it is expressed in the plain, common language of mankind."

Of course, the framers -- and the authors of the amendments -- were writing a constitution, not a recipe. So tensions and ambiguities do exist, just as they do in any contract. Judges know how to handle such problems. They start with the plain language of the document, including the definition of the words. They look at the overall text of the document and try to keep it internally consistent. If necessary, they look outside the four corners of the document to assess the drafters' intentions. But there is one thing judges don't do, even when confronted with a sloppily drafted piece of work: They don't throw up their hands and rewrite the document according to their own views as to what would be good for the parties. They don't arrogate to themselves the role that Souter prescribes for judges construing the Constitution.

In the private sphere, balancing competing contractual interests is a task for the parties. In the public sphere, balancing competing values is a job for politicians. Unlike federal judges, politicians are elected by the people and answerable to the people. If we don't like the way they balance competing values, we can always throw them out and pick other ones. We have no such control over Supreme Court Justices -- which is exactly why their role must be modest.

In the course of his address, Souter discussed the different judicial treatment of "separate but equal" in Plessy v. Ferguson and Brown v. Board of Education. In 1896, in the first case, the Court ruled that there was no violation of the equal protection guarantee to require black passengers to ride in physically equal but separate railroad cars from whites. In 1954, in the second case, the Court ruled that segregated schools are inherently unequal. Souter cited the different conclusions, not to condemn Plessy and praise Brown, but to support his contention that the Constitution must be interpreted according to "its meaning for living people." In 1896, according to Souter, the "formal equality of an identical railroad car meant progress." In 1954, equal protection had assumed a different meaning. "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." In other words, both decisions were right for their respective times.

But both decisions were not right for their times. Plessy was wrong in 1896, just as it was wrong in 1954. Justice John Marshall Harlan, the sole dissenter in Plessy, could see that. He refused to vote to uphold a Louisiana law forbidding railroads from seating black customers with whites because he took the equal protection clause of the 14th Amendment to mean exactly what it said, not what it meant to his contemporaries.

Harlan's dissent is particularly germane to Souter's address because Harlan's personal views and values were probably in line with those of the majority. A former slave-owner, Harlan was an unabashed racist. Elsewhere in his dissent, he proudly dubbed the white race "the dominant race in this country ... in prestige, in achievements, in education, in wealth and in power," and predicted that the white race "will continue to be [dominant] for all time if it remains true to its great heritage and holds fast to the principles of constitutional liberty." Still elsewhere, he assailed the Louisiana law as illogical because, while forbidding a black from sitting next to whites, it did not similarly forbid a "Chinaman," even though he is a member of a "race so different from our own that we do not permit those belonging to it to become citizens of the United States." But Harlan understood that his personal values had no place in constitutional adjudication. So he suppressed his prejudices and followed the law.

Had Justice John Marshall Harlan embraced the judicial philosophy of Justice David Souter, Plessy v. Ferguson probably would have been decided unanimously.

As the confirmation hearings of Elena Kagan proceed, senators from both parties will undoubtedly do what they failed to do twenty years ago during the hearings on the Souter nomination: They will explore her judicial philosophy. One way to initiate the exploration will be to ask her: "Solicitor General, tell us what you think of Justice Souter's commencement address."
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