Elena Kagan Needs to Read Justice Souter’s Speech to Harvard Law

I know its a nice sunny summer afternoon and no one wants to work their brains too hard, but someone just sent me the text of a speech retired  Supreme Court Justice David Souter gave to the graduating class of Harvard Law a few days ago and while he didn’t mention Supreme Court nominee Elena Kagan by name, his words sounded like he was giving her some advice about what it means to be a Supreme Court Justice. So if you have a few minutes to kill,  it may be worth while to think about some of the issues Souter raised which are also a direct attack on Chief Justice Roberts’ judicial philosophy.

You see, lately many important, life-changing decisions have been decided by a 5-4 split and while the groups have generally been divided by labels such as “right and left” or “Conservative and Liberal” in fact the division is more accurately described as “Strict Construction and  Living Constitution.”

To describe it quickly, Strict Construction or “Fair Reading” as it is also known, is a philosophy that stands for the proposition that Justices should look only to the actual words of the Constitution and make decisions based only on a “fair reading” of the Constitution and the intent of the framers of the Constitution.  They say that to do anything else is to act as a legislative body, writing laws, and that this is not the province of the Judiciary.  While this idea has existed since the document was created, it really became an active debate in the appointment of Justices during the Nixon, Ford and Reagan administrations. Its most vocal current supporters are Justices Scalia and Thomas.

The other group’s judicial philosophy is that the Constitution cannot be read in the vacuum of the 18th Century, but must be adapted to include all our history and current societal values.  While many are credited with the creation of the term, it was originally explained in a Supreme Court decision by Oliver Wendell Holmes more eloquently than I could ever do:

We must realize that [the framers] have called into life a being, the development of which could not have been foreseen completely by the most gifted of its begetters. It was enough for them to realize or to hope that they had created an organism; it has taken a century and has cost their successors much sweat and blood to prove that they created a nation. The case before us must be considered in the light of our whole experience and not merely in that of what was said a hundred years ago.

Missouri v. Holland 252 U.S. 416 (1920).

You will here often during the Kagan debates whether she is a strict constructionist or believes in a living Constitution. In early writings she has said that she feels prospective nominees should give real answers showing their true positions not merely platitudes that will let them get by the process without revealing anything about themselves. If that’s the case, she needs to memorize Souter’s speech and explanation of why “fair reading” is not fair and that one fails to treat the Constitution as a living document at their peril.

Souter started out by saying that of course in most cases, you can use “fair reading” to render a Constitutional decision: The Constitution says that a US Senator must be at least 30 years of age, so if someone who is 21 tries to run for US Senate, you only need a fair reading of the Constitution to decide it. The problem, he said,  is that cases that can be decided JUST by the very words of the Constitution don’t make it the Supreme Court.

And for the ones that do get there, for the cases that tend to raise the national blood pressure, the fair reading model has only a tenuous connection to reality.

Text of Justice David Souter’s speech

You got to love it.  He just told the Four Horsemen of the Apocalypse (Roberts, Alito, Scalia and Thomas) that they had a “tenuous connection to reality.” In Supreme Court circles that’s trash-talking of the highest order. This coming from a guy who was chosen because he was quiet and not likely to cause a floor fight like idealogue Robert Bork, who had recently been defeated.  He replaced liberal icon William Brennan and coming from a conservative part of New Hampshire, single, gentleman farmer, was thought to be conservative-minded if not a right wing extremist.  Oh well, that proved wrong as he usually sided with the left wing of the court.

And just in case the graduates  thought they were in for some heady lengthy explanation as to why he felt that way, Souter said: Even a moment’s thought is enough to show why it is so unrealistic. He went on to explain that such general terms as “Due Process” “Equal Protection” “Freedom from Unreasonable Searches” need analysis and “elaborate reasoning” to determine when they apply. He went on to add that it is also not really as simple as that:

Another reason is that the Constitution contains values that may well exist in tension with each other, not in harmony.  Yet another reason is that the facts that determine whether a constitutional provision applies may be very different from facts like a person’s age or the amount of the grocery bill; constitutional facts may require judges to understand the meaning that the facts may bear before the judges can figure out what to make of them.  And this can be tricky.

It goes back to something he said when he was being confirmed:

Whatever court we are in, whatever we are doing, whether we are in a trial court or an appellate court, at the end of our task some human being is going to be affected. Some human life is going to be changed in some way by what we do, whether we do it as trial judges or whether we do it as appellate judges, as far removed from the trial arena as it is possible to be. And so we had better use every power of our minds and our hearts and our beings to get those rulings right.

This is what happens when you appoint someone who was  a working lawyer, a prosecutor, a trial judge and an appellate judge to the Supreme Court; they have perspective.  It is why Elena Kagan, who was none of those things, needs to pay attention. (It is ironic that these two also share the “must be gay” rumor because they remained single all their adult lives).

Souter then used two famous cases to make his point – the Pentagon Papers case and Brown v. Bd. of Education. In the first case, the government tried to stop the publication by the NY Times of some sensitive documents regarding the Vietnam War. Under fair reading analysis, the case should have taken five minutes since the Constitution plainly says there shall be “no law abridging the Freedom of the Press.”  But while the Court did decide the documents should be published, the lawyer for the government convinced the court that “no law” didn’t really mean “no law,” and that in some cases the government could stop the press from printing sensitive documents since the Constitution also mandates that the government protect the people from harm and provide for national security. It just didn’t prove that this was the case in this particular circumstance.

Of course, the second case is more familiar and ended decades of “separate but equal” public accommodations. But what Souter points out is that to the judges who decided Plessy v. Ferguson in 1869, “separate but equal ” was a huge step forward.  Those judges grew up when slavery  was part of American life so this was to them the best way to guarantee “equal protection” of the laws.  They weren’t wrong to have authorized “separate but equal,”  Souter says just form a different era, with a different mindset. And when the same problem came back up in1954, the country had learned a great deal about separate but equal and our mindsets had changed. The only real differences between the two case, he points out, is the years in which they were decided.

This speech was also a response to Justice Roberts’ comments during his confirmation:

“Judges are like umpires. 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. But it is a limited role.”

Tell that to the kid that just lost a perfect game because of an umpire, but I digress.  First of all, this statement is not only wrong it is false.  Roberts has recently shown a complete willingness to change the law of this country and to undo precedent of long standing. (See my blog posts about The Citizen Union case and the recent Miranda Reversal as examples).  But secondly, it also ignores what Souter pointed out about those two cases – that even the most strict and clear Constitutional language cannot provide all the answers for all the  cases forever into the future.  He added that “no resolutions [are] immune to rethinking when the significance of old facts may have changed in the changing world.

It seems so basic – the world changes so our thinking may change over decades or centuries.  To expect the Court to not take that into account or to falsely label it as judicial activism “devalues our aspirations, and attacks our confidence, and diminishes us.  It is a view of judging that means to discourage our tenacity (our sometimes reluctant tenacity) to keep the constitutional promises the nation has made. ”

Eloquent words from a a reserved quiet man who when he was put on the bench, did what he thought was right, not just what was expected of him by the president (Bush I) who appointed him.  Ms. Kagan needs to seriously consider Justice Souter’s words  and his judicial philosophy as she prepares for her confirmation hearing.  This is as critical a time  as ever  for the Court, when 5-4 has been the order of the day on so  many serious issues. We need to realize that it is not 1791 when the Constitution was ratified, that it was made general because the framers knew that they could not look into the future and predict every possible conflict and provide for every possible resolution.  She needs to realize that being a judge-particularly a Supreme Court judge- requires the courage and conviction to state that the law must be read in conjunction with the times in which it is being applied. Otherwise, we’d still be living under the Hammurabi Code and  “an eye for an eye” would be the order of the day.

Here’s how Souter closed his speech to those young lawyers, let’s hope they keep it to heart and that Ms. Kagan was paying attention:

If we cannot share every intellectual assumption that formed the minds of those who framed the charter, we can still address the constitutional uncertainties the way they must have envisioned, by relying on reason, by respecting all the words the Framers wrote, by facing facts, and by seeking to understand their meaning for living people.

That is how a judge lives in a state of trust, and I know of no other way to make good on the aspirations that tell us who we are, and who we mean to be, as the people of the United States.

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