David Souter slices and dices the grand lie-slash-myth regarding the function of the Supreme Court

Justice Souter said a mouthful in his 30-minute

Harvard commencement address last week.

"[Former Supreme Court Justice David] Souter is right to say that '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.'

"Because these desires clash, courts are 'forced to choose between them, between one constitutional good thing and another one.' Souter's view admits that this is what judges do. Originalists pretend they're not choosing. Which approach is the more trustworthy?"

-- E. J. Dionne Jr., in a must-read WaPo column today,

"David Souter vs. the Antonin Scalias"

by Ken

It's not exactly news that right-wingers depend heavily on forcefully stated expressions of "commonsense wisdom" lore that is mostly or all bulldoody but that sounds good to the intellectually lazy and gullible. Sometimes the forceful staters actual believe their bulldoody, and then we have the stupid leading the gullible. More often the staters are knowingly hoodwinking those poor sods, so that we have the dishonest diddling the sheep.

And there you have modern conservatism: a coalition of the Stupids and the Dishonests. The categories, as I always like to point out, are far from mutuallyl exclusive.

It's a shame the Stupids and Dishonests among that unbelievably sad swath of humanity known as the Republicans of the Senate Judiciary Committee can't be persuaded to wear baseball caps or sweatshirts to identify their procilivites during the upcoming spectacle of the Elena Kagan Supreme Court confirmation hearings. Or maybe, while noble statesmen like Wee Jeffie Sessions -- a Stupid, for sure --are spewing their venomous bilge, they could perhaps raise their left hand while they're lying and their right hand when they jest plain don't know no better. It would make it easier for us to keep score.

One thing you know we'll be hearing a lot during the Kagan hearings is what has become the Universal Right-Wing Judicial Meme. I believe I've mentioned how much I hate that now-inescapable meme "meme," but if ever it was appropriate, it's here. You know the one: where the doody-brained right-wingers declare in their most portentous "fate of the republic" tones, "Judges shouldn't make law, they just apply the law-slash-Constitution."

Personal opinions and beliefs and philosophies, they will make clear, have nothing to do with this process. They contaminate it. Therefore, people who have personal opinions and beliefs and philosophies -- other than loony far-right ones, of course -- are disquallified from service on the High Court, or even lower federal courts that require SJC approval, unless they swear that none of this will ever come into play in their deciding. The job (let's all say it together) is just to apply the law.

This is of course 100 percent nonsense. Again, it can only be uttered by two classes of people: our friends the Stupids and the Dishonests.

The Stupids aren't smart enough to understand -- and the Dishonests have no interest in raising the issue -- that for a case to reach any appellate court, there's a strong likelihood that "applying the law-slash-Constitution" doesn't come into play, or there wouldn't be any need for the appeal. Oh, it's true that miscarriages of justice and blatant misreadings of law happen in lower-level courts, but it's safe to say that almost without exception these are weeded out in the lower-level appeals courts. By the time a case reaches the U.S. Circuit Courts of Appeals, the level just below the Supreme Court, whether it's come from within the federal court system or on appeal from state courts, it's a good bet that the opposing parties have conflicting views of what the law and the Constitution say, and/or that the law and the Constitution say conflicting things. After all, one of the categories of cases the High Court is most likely to accept for review is the kind where two or more circuits have reached opposite judgments by their differing processes of just reading the law-slash-Constitution. It's hard to imagine a case actually landing on the Supreme Court docket that could imaginably be so decided.

The notion that such cases can be decided by just applying the law-slash-Constitution is so obviously bogus that you wonder how it could possibly still be trotted out. Two reasons: First, as I noted, it sounds so utterly and indisputably reasonable; and second, there's such an abundance of Stupids who really don't get it (personally, I think most of them aren't so much Stupids as Lazies, who believe they're under no obligation to use their brains and nobody can make them) and Dishonests who have personal agendas that are advanced perpetuating this nonsense.

In the minds of the Stupids and Dishonests, any judicial ruling that doesn't advance the interests of the rich and powerful and/or the guardians of the most rigid social orthodoxies is "judicial activism." However, when ridid ideologues lie their way through Senate confirmation hearings claiming that, scout's honor, they'll just apply the law-slash-Constitution, and show due respect for the Court's own precedents, and then once on the bench set out on a rampage of rewriting the Constitution and judicial precedent, that's apprentlly not judicial activism.

Of course the patron saint of the Supreme Court judicial-activism Stupids and Dishonests is our old pal the human blimp, Antonin Scalia. And last week at Harvard's commencement, though not mentioning him by name, retired Justice David Souter sliced and diced him.

You have to give the Harvard folks credit for snagging alum Souter (class of 1961) for the first commencement after his retirement from the Supreme Court. It's not that Supreme Court justices are unable to give commencement addresses while they're still serving. But give somebody in Cambridge credit for deducing that a newly retired Justice Souter might have some, you know, stuff on his mind.

I don't mind saying that I love Souter, though in an utterly platonic way. I think his service is easy to undervalue, consisting as it did of 19 years of quiet wisdom, diligence, and humility. And so I was delighted to read E. J. Dionne Jr.'s Washington Post column today about the speech.

At issue is "originalism," an approach to reading the Constitution whose seeming precision has given conservatives a polemical advantage over the liberals' "living Constitution" idea that appears to let judges say our founding document means whatever they want it to mean.

Justice Antonin Scalia, the court's leading orginalist, summarized his opponents' attitude toward the Constitution with four words: "You know, it morphs."

Now, thanks to Souter's commencement address at Harvard last week, Scalia's critics have fighting words of their own. Souter, who did not mention Scalia by name, underscored "how egregiously it misses the point to think of judges in constitutional cases as just sitting there reading constitutional phrases fairly and looking at reported facts objectively to produce their judgments."

The problem is not only that "constitutions have a lot of general language in them in order to be useful as constitutions," but also that the U.S. Constitution "contains values that may very well exist in tension with each other, not in harmony."
This means that "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."

And Souter found a splendid demonstration of what Dionne calls "the fatal flaw of originalism -- which he relabeled the "fair reading model": the Supreme Court's landmark 1954 Brown v. Board of Education ruling, which in overturning legal segregation overturned the 1896 Plessy v. Ferguson, which accepted "separate but equal" public facilities.

"For those whose exclusive norm of constitutional judging is merely fair reading of language applied to facts objectively viewed, Brown must either be flat-out wrong or a very mystifying decision," Souter said.

"The language of the Constitution's guarantee of equal protection of the laws did not change between 1896 and 1954, and it would be very hard to say that the obvious facts on which Plessy was based had changed," Souter argued. "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."

Yes, the Supreme Court changed because the nation's understanding of race changed.

Souter notes that "the members of the court in the Plessy case 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 enormous progress. But the generation in power in 1954 looked at enforced separation without the revolting background of slavery. . . . "

"Did the judges of 1954 cross some limit of legitimacy into lawmaking by stating a conclusion that you will not find written in the Constitution?" Souter asked rhetorically. "Was it activism to act based on the current meaning of facts that at a purely objective level were about the same as Plessy's facts 60 years before?"

Obviously, Souter doesn't think so. But while conservative scholars such as Michael McConnell have constructed ingenious arguments to show how originalism could accommodate Brown, it's hard to see judges guided by that doctrine reaching as boldly as the 1954 Warren court did.

Contrast Souter's view with Scalia's mocking reference to those who "think the Constitution is some exhortation to give effect to the most fundamental values of the society as those values change from year to year." Well, between 1896 and 1954, they did change.

Dionne makes a larger point. Originalism ignores a central reality of the Constitution: that the Founders can't have built in any "true meaning," since as historian Gordon Wood has noted, it's a product 'not of closet philosophizing but of contentious political polemics."

These aren't difficult concepts, but they're widely ignored. Give credit to the Stupids and Dishonests.

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