Almost two weeks ago, former Supreme Court Justice David Souter gave the commencement speech at Harvard, a speech that's been variously described by some of my favorite legal writers as a denunciation of "originalism," a defense of "living constitutionalism," and a suggestion that "judicial activism" is a game both liberals and conservatives can play. But the striking aspect of Souter's remarkable speech is that it rejected virtually all of these easy ideological labels and addressed itself to two much simpler questions: Is the meaning of the Constitution clear? And is the task of divining that meaning easy? These incisive questions themselves beg an even more pressing constitutional question: Why must justices first leave the bench before they can speak seriously about the importance of the court?
It's been tempting for court watchers to suggest that the single purpose of Souter's speech was to take out Antonin Scalia's alluring theory of originalism, but even that diminishes the force of what Souter was attempting to explore. He wasn't just using the opportunity to debunk what he called the "fair-reading model" of constitutional interpretation (which is quite different, although related, to the originalist approach). And he wasn't just using the speech to argue for evolving moral standards in judging, although he did that, too. It seems to me that Souter's decision to avoid all the hot-button words signals a much bigger project: He wants Americans to consider—in advance of yet another tedious confirmation hearing—the possibility that judging is really, really hard and only special people should get to do it.
Souter took pains to reject the idea that the plain meaning of the Constitution is always clear, lurking there "in the Constitution, waiting for a judge to read it fairly." We can all agree that much of the Constitution is not at all clear. (What does "cruel and unusual" mean?) But Souter went on to show that certain provisions of the document are in tension with others. "The Constitution is no simple contract," he explained, "not because it uses a certain amount of open-ended language, but because its language grants and guarantees many good things, and good things that compete with each other and can never all be realized, altogether, all at once."
Under such circumstances, justices can no more be neutral umpires—in Chief Justice John Roberts' famous formulation—than they can be dispassionate microcomputers. You can be the greatest reader of text in the world and the most profound diviner of linguistic meaning, but it still won't help you in any but the handful of very easy cases, which, as Souter correctly observed, "do not usually come to court, or at least the Supreme Court." That is precisely why, he added, "the fair-reading model has only a tenuous connection to reality." It describes a nonexistent universe in which all cases are easy and all the constitutional directives are perfectly clear.
Souter went on to describe two cases in which the result was not at all clear or obvious—the Pentagon Papers case from 1971 and Brown v. Board of Education in 1954. In the first case, he noted, two constitutional values were in direct tension, and there was no obviously right answer. In the second, constitutional values had evolved to the point that "separate but equal" was no longer defensible, even if the plain language of the 14th Amendment guarantee of "equal protection" had not changed. Neither of these two propositions seems surprising to most of us. Nobody truly believes the idea of mechanical, easy judging to be anything more than normative propaganda.
Souter's speech thus represents much more than an ode to a changing Constitution or a forceful admission that something that sounds suspiciously like "empathy" means that "judicial perception turns on the experience of the judges, and on their ability to think from a point of view different from their own." Souter's words even transcend his own high-minded call to "keep the constitutional promises the nation has made." What Souter asked Americans to do in his Harvard speech is to live with ambiguity. To, in his words, acknowledge that there is a "basic human hunger for the certainty and control that the fair-reading model seems to promise," while recognizing, in Justice Oliver Wendell Holmes' formulation, that "certainty generally is illusion and repose is not our destiny." He is telling us to stop dreaming of oracular judges with perfect answers to simple constitutional questions. He is telling us, in other words, to grow up.
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Happy Constitution Day!
Too bad it’s almost certainly unconstitutional.