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.
USA Today’s Joan Biskupic writes today on the ideological and stylistic differences of Justices Scalia and Breyer:
They appear at law schools together to discuss their competing views of the Constitution. They take ideological aim at each other in rulings. And their differences are increasingly playing out in testy fashion on the bench.
No two justices seem to drive each other so nuts during oral arguments. That was clear during the first session of the new year, as Justices Antonin Scalia and Stephen Breyer squabbled in a series of cases last week.
Scalia is conservative and Breyer liberal. Yet their differences on the bench are ones of both substance and style. As Breyer begins a long, hypothetical question, Scalia — a fast-speaking, get-to-the-point guy — often slaps his hands up to the sides of his head.
Breyer doesn’t exude irritation as much as frustration. A pragmatist, he is irked when Scalia interrupts his interest on how a ruling might affect real life.
As Biskupic illustrates her point with the justices’ behavior during last week’s American Needle argument, her article reminds me of my own brief Scalia-and-Breyer story that similarly exemplifies their differences.
Sometime during our stay here in DC, my girlfriend and I found ourselves wildly out of place at a party with many well-established Washington-types. One glance around the room would make any mortal quake under the power on display. We had two choices: stand in the corner with eyes averted or swallow our fears and engage. We went with the latter and made towards the buffet table.
As we both stepped up to the plate–literally, dinner plates–we hit yet another obstacle. For me, big slabs of beef with no knives in sight; for my girlfriend, on the opposite end of the table, giant beans she had never seen. I didn’t know how to properly eat what I so wanted, she didn’t want to eat what she didn’t know.
I stood there staring at the forks and meat on the table, imagining to myself just how I could carnivorate without making a scene. Should I aggressively saw the meat with the side of my fork? Should I stuff the whole thing into my mouth? Should I just tear it with my hands?
Then I looked to my left and found Justice Scalia making for the meat. How appropriate!
Me: Justice Scalia, how do you eat the meat without a knife?
AS: Well, you take this bread [he takes bread from the breadbasket on the table], you fold the meat on top of it, and you eat it!
Me: You just gnaw on it?
AS: Yes, that’s how you eat it.
I was so excited to be getting meat-eating lessons, however curt, from Justice Scalia that I looked across the table to see if my girlfriend was taking it in. But instead I found myself witnessing the very study in contrasts Biskupic writes of today: Justice Breyer was very intently introducing my girlfriend to the wonder of fava beans.
Now, whenever my girlfriend and I find ourselves at fancy parties with buffets featuring slabs of beef sans knives and giant fava beans, we take care to seek out our own overwhelmed peers–easily spottable by their uneasy eating–and impart to them the lessons we learned from those old adversaries, Justices Scalia and Breyer.