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.
Souter's admonition that we should stop looking for infallible mommies and daddies on the bench differs only slightly from Sandra Day O'Connor's post-retirement crusade against judicial elections. Like Souter, O'Connor has used her time since departing the bench to urge upon the American people, as she argued recently, that judging is complex and that "the judiciary, unlike the legislative and the executive branches, is supposed to answer only to the law and the Constitution." O'Connor well understands that the American public seeks greater control over the judicial branch. But like Souter, she is trying to explain that there are costs to presenting the art of deciding cases as something that can be painted by the numbers. You have to wonder why it's only after they leave the court that justices are permitted to say that judging isn't simple. Is it some form of humility that requires sitting judges to downplay their intelligence or skills?
Contrast Souter's honesty to the nonsense you hear at judicial confirmation hearings, up to and including the chief justice's claim at his hearing that "umpires don't make the rules. They apply them. The role of an umpire and a judge is critical. They make sure everybody plays by the rules." Last June, at her own hearings, Sonia Sotomayor described her vision of a good judge as someone "who looks at the facts of each case, listens and understands the arguments of the parties, and applies the law to the facts at hand." Easy, right? I mean, my 5-year-old can do that.
So, as we look forward toward Elena Kagan's confirmation hearings, the question isn't whether she will use the opportunity of her hearings to defend living constitutionalism or to debunk originalism. That is probably too freighted a discussion, and one that no progressive can possibly win in this day and age. The question I would ask is why it's so fashionable for nominees to suggest that the hard work of judging is simple; that the Constitution is no more complicated than the instructions for assembling an Ikea end table; and that the reason they are perfectly qualified for the job is that, well, they can read. What does it say about the court as an institution that everyone who goes through the interview process must downplay the difficulty of the job?
It's surely too much to ask that the modern confirmation process explore the complex work of balancing, in Justice Souter's recent words, a reliance on "reason, by respecting all the words the Framers wrote, by facing facts, and by seeking to understand their meaning for living people." The very notion that we could trust anyone to do all that is too frightening to contemplate. But could we at least ask that the nominee, and the senators, decline to insult our collective intelligence with the suggestion that judging is so easy, and the Constitution so crystal clear, that a second-year associate could do it.
It saddens me to think that it took Justice Souter 19 years of heavy constitutional lifting and departure from the court before he could turn to the American people and explain clearly that much as we might want judging to be easy, it never can be. It terrifies me even more to think that we've crafted a confirmation process in which the consistent message is that judging is so simple that any old bozo can do it. If we continue to believe that this is so, we will be on the road to confirming any old bozo that stumbles along.