Justice Souter spoke today at Harvard’s commencement, where he sought to pre-empt the inevitable charges of the Court’s “engaging in activism to extend civil liberties” that come at the end of each term and the start of every confirmation battle. In recognizing the Constitution’s conflicting values and open-ended provisions, Souter presented a judicial approach in staunch opposition to what he called the “fair reading model”–think Chief Justice Roberts’s balls-and-strikes metaphor–as having only a “tenuous connection to reality” in the cases that “raise the national blood pressure.”
The judge, Souter argued, must reckon with the fact that the “Constitution is no simple contract,” but rather a “pantheon of values” with language that “grants and guarantees many good things, and good things that compete with each other and can never all be realized, altogether, all at once.” These conflicts, Souter said, reflect the “desire of the American people, like most people, to have things both ways.” When those good things compete–order v. liberty, liberty v. equality–“judges have to choose between the good things that the constitution approves, and when they do they have to choose not on the basis of measurements but of meanings.”
As examples, Souter cited two landmark constitutional law cases from which many contemporary cries of judicial activism originate.
To illustrate a Court’s obligation to decide between conflicting constitutional provisions, he spoke about the Pentagon Papers case in which the Court’s majority rejected both Justice Black’s First Amendment absolutism and the government’s claims of absolute executive privilege. The Court instead decided against the government but contemplated circumstances in which a prior restraint, despite the First Amendment’s plain language, would be necessary under the President’s constitutional mandate in foreign affairs and national security. Upon this consideration, Souter asked,
Should the choice and its explanation be called illegitimate law making? Can it be an act beyond the judicial power when a choice must be made and the Constitution has not made it in advance in so many words? So much for the notion that all of constitutional law lies there in the Constitution waiting for a judge to read it fairly.
To show the promise of the Constitution’s deliberately open-ended provisions such as the Equal Protection Clause, Souter referred to Brown v. Board‘s rejecting a separate-but-equal regime that seemed sixty years prior to mean “enormous progress” for the Plessy v. Ferguson majority, who “remembered the day when human slavery was the law in much of the land.” The Brown Court, then, “found a meaning in segregating the races by law that the majority of their predecessors in 1896 did not see.” To this, Souter rhetorically asked his audience and hypothetical Brown-skeptics:
Did the judges of 1954 cross some limit of the constitution into lawmaking? Was it activism to act based on the current meaning of facts that at a purely objective level were the same as Plessy’s facts 60 years before? So much for the assumption that facts just lie there waiting for an objective judge to view them.
Indeed, for Souter, “judges who understood the meaning [of Jim Crow] that was apparent in 1954 would have violated their oaths to uphold the Constitution had they not held the segregation mandate unconstitutional.”
Souter concluded that the “the very opportunity for conflict between the good and the good reflects our confidence that a way may be found to resolve it when a conflict arises.” The fair reading is view of judging, then, “devalues those aspirations, and attacks that confidence, and diminishes us” by “discourag[ing] our tenacity (our sometimes reluctant tenacity) to keep the constitutional promises the Nation has made.”
Although the fair reading model seems to promise to satisfy the “basic human hunger for certainty and control,” Souter recognized that in an “indeterminate world,”
we can still address the constitutional uncertainties the way [the Framers] must have envisioned, by relying on reason that respects the words the Framers wrote, by facing facts, and by seeking to understand their meaning for the living. That is how a judge lives in a state of trust, and I know of no other way to make good on the aspirations that tell us who we are, and who we mean to be, as the people of the United States.
UPDATE: Link to transcript added with quotes fixed to reflect the official text.