Last week, I published a run-down of Justice Souter’s speech at Harvard, in which he offered a strong rebuttal to the textualist/originalist approach that has come to dominate our confirmation hearing debates. This week, there has been a flurry of commentary on the speech from Linda Greenhouse of the New York Times, Joan Biskupic of USA Today, and E.J. Dionne of the Washington Post.
This speech, however, was not only meant to address today’s public and Souter’s former colleagues. As I wrote two months ago, Souter is taking the long view towards restoring a balanced approach to judging thrown off-kilter by the Warren and Burger Courts’ liberal overreach and the Rehnquist and Roberts Courts’ conservative overcorrection. Souter’s speech, then, may be taken in tandem with his valedictory Osborne dissent from last term, in which he advocated for the the law’s restrained evolution–something that was common sense to liberals and conservatives several generations ago but today seems downright paradoxical compared to our current choice of calcification or activism.
Here’s the relevant part of the dissent in full:
As for determining the right moment for a court to decide whether substantive due process requires recognition of an individual right unsanctioned by tradition (or the invalidation of traditional law), I certainly agree with the Court that the beginning of wisdom is to go slow. Substantive due process expresses the conception that the liberty it protects is a freedom from arbitrary government action, from restraints lacking any reasonable justification and a substantive due process claim requires attention to two closely related elements that call for great care on the part of a court. It is crucial, first, to be clear about whose understanding it is that is being taken as the touchstone of what is arbitrary and outside the sphere of reasonable judgment. And it is just as essential to recognize how much time society needs in order to work through a given issue before it makes sense to ask whether a law or practice on the subject is beyond the pale of reasonable choice, and subject to being struck down as violating due process.
It goes without saying that the conception of the reasonable looks to the prevailing understanding of the broad society, not to individual notions that a judge may entertain for himself alone, and in applying a national constitution the society of reference is the nation. On specific issues, widely shared understandings within the national society can change as interests claimed under the rubric of liberty evolve into recognition, see Griswold v. Connecticut, 381 U. S. 479 (1965) (personal privacy);Lawrence v. Texas, 539 U. S. 558 (2003) (sexual intimacy), see also Washington v.Glucksberg, 521 U. S. 702, 752 (1997) (Souter, J., concurring in judgment), or are recast in light of experience and accumulated knowledge, compare Roe v. Wade, 410 U. S. 113 (1973), with Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833(1992) (joint opinion of O’Connor, Kennedy and Souter, JJ.).
Changes in societal understanding of the fundamental reasonableness of government actions work out in much the same way that individuals reconsider issues of fundamental belief. We can change our own inherited views just so fast, and a person is not labeled a stick-in-the-mud for refusing to endorse a new moral claim without having some time to work through it intellectually and emotionally. Just as attachment to the familiar and the limits of experience affect the capacity of an individual to see the potential legitimacy of a moral position, the broader society needs the chance to take part in the dialectic of public and political back and forth about a new liberty claim before it makes sense to declare unsympathetic state or national laws arbitrary to the point of being unconstitutional. The time required is a matter for judgment depending on the issue involved, but the need for some time to pass before a court entertains a substantive due process claim on the subject is not merely the requirement of judicial restraint as a general approach, but a doctrinal demand to be satisfied before an allegedly lagging legal regime can be held to lie beyond the discretion of reasonable political judgment.