The Supreme Court Breakfast Table

Souter: A Last Lecture on Gay Marriage?
An email conversation about the news of the day.
June 29 2009 8:20 AM

The Supreme Court Breakfast Table

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Dear Dahlia and Linda,

Dahlia's last post brought up Barry Friedman's forthcoming book, The Will of the People: How Public Opinion Has Influenced the Supreme Court and Shaped the Meaning of the Constitution, and asked whether we agree with its thesis. As part of the process of coming up with an answer, I wound up studying an opinion of Justice Souter's from a few days ago that strikingly addresses not only this issue but substantive liberty and may include his partially disguised thoughts on gay marriage litigation as well.

But, first, to answer your question, Dahlia: Does public opinion influence the court's decisions? Should it? The court's history suggests that major decisions have indeed been influenced by public opinion, although seldom determined by it. The influence of public opinion was candidly acknowledged, for example, in. Dickerson v. United States,in which Chief Justice Rehnquist forthrightly stated that the court's decision not to overrule Miranda v. Arizona was influenced in part by the fact that Miranda had become an accepted part of the national culture.

The court's most important 20th-century decision, Brown v. Board of Education, is a compelling case study of the court's dialogue with the American people, a discussion in which each influenced the other. As early as 1938, the court had done all the "legal" and "logical" work necessary to find segregation unconstitutional. But a judicial decision actually ending segregation in the South would have been impossible in 1938. Such a holding could have ended judicial review—not Jim Crow. Only after the transformative experiences of World War II, Jackie Robinson, and the emergence of America as a world leader did the court conclude that it was in a position to act. Even then, the Warren Court was further ahead of public opinion when it decided Brown than it had ever been before or has been since. It was a full decade before the country was actually accepted and complied with the decision—a decade in which the national debate was itself profoundly influenced by the court's pronouncement.

It was not a mere coincidence that when the court stuck down homosexual sodomy laws in Lawrence v. Texasin 2003, the number of states that still had such laws was about the same as the number of states that still had de jure school segregation when Brown was decided—in each case, the retrograde states made up about one-fourth of the country. In contrast, when the court sustained state laws banning the use of lethal medication in Washington v. Glucksberg, the rejected claim of a right to physician-assisted suicide had not yet been recognized by even a single state.

What makes these questions so timely is that David Souter, who will sit as a justice for the last time this morning, addressed these issues in a very powerful way just last week in an passage that may well have been intended as a valedictory message to the court and a caution to those who litigate on behalf of individual liberty. In his dissent in the DNA case, District Attorney's Office v. Osborne, Souter wrote extensively about issues of substantive liberty that he did not need to address in order to decide the case before him. He obviously had some things he really wanted to say before hanging up his black robe.

In his essay-within-an-opinion, Souter clearly had the sweep of the court's future in mind, and not just any single issue. It is still hard to avoid the conclusion that one issue in his mind was gay marriage. His carefully nuanced message both defends the legitimacy of judicial recognition of "non-traditional" rights and cautions against a premature quest for national judicial rules.

Souter, recognizing the value of "continuity with the past," accepts the proposition that tradition is a "serious consideration" in judging whether a practice is "outside the realm of reasonable governmental action." He rejects, however, the notion that tradition defines and limits the scope of the liberties entitled to judicial protection against hostile legislation.

A true originalist, Souter refuses to limit individual rights to the time-bound set of liberties that the Framers of the 14th Amendment would have include had they chosen to adopt a specific list. The short answer is that the Framers did not so choose. They deliberately wrote with a broad brush and left particular applications to the future. In carrying out that mandate, Souter writes, the court must look to "widely shared understandings within the national society" that can change "as interests claimed under the rubric of liberty evolve into recognition."

Having defended the concept of evolving liberty, Souter then turns to the important question of when it would be "premature for the Judicial Branch to decide whether … a general right should be recognized."

"The beginning of wisdom," he writes, "is to go slow." Before declaring "unsympathetic state or national laws arbitrary to the point of being unconstitutional," he writes, a wise court will "recognize how much time society needs in order to work through a given issue."

His opinion then takes what seems to be an extraordinarily personal turn. He may be speaking of himself (or his rural neighbors) when his says that "[w]e 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." Sometimes, he says, "an attachment to the familiar and the limits of experience" limit "an individual's capacity to see the potential legitimacy of a moral position."

So, too, it is with the broader society, which "needs the chance to take part in the dialectic of public and political back and forth about a new liberty claim." Souter's final message to his conservative colleagues is that conceptions of liberty evolve. And his last caution to those litigators pushing the frontiers of liberty is that nations, like individuals, need time to assimilate new thinking.

He will be missed.

Yours,
Walter

Walter Dellinger is a professor of law (on leave) at Duke University and a partner in the appellate practice at O’Melveny & Myers in Washington, D.C.