Bankruptcy

Ex-Justice Souter Explains Judicial Role

By mcbride

In a recent commencement speech at Harvard, Former Supreme Court Justice David Souter took the opportunity to explain the role of Judges in interpreting the U.S. Constitution, as he understands it.  One can see this speech as an explanation of a judicial point of view different than that espoused by Justices Scalia and Thomas.  They often use phrases like ?originalism? or ?fair reading? when discussing their methods of interpretation.  As similarly, Chief Justice John Roberts has said the Judge should just call balls and strikes, like an impartial umpire. 

 ?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 [the First Amendment protecting free speech versus national security; should the purloined papers be published or not?], and there was no obviously right answer.?  From the speech itself: ?A choice may have to be made, not because language is vague but because the Constitution embodies the desire of the American people, like most people, to have things both ways.  We want order and security, and we want liberty.  And we want not only liberty but equality as well.  These paired desires of ours can clash, and when they do a court is forced to choose between them, between one constitutional good and another one.  The court has to decide which of our approved desires has the better claim, right here, right now, and a court has to do more than read fairly when it makes this kind of choice.  And choices like the ones that the justices envisioned in the Papers case make up much of what we call law.? As an aside, agree or not with his position, one can see why he was a Supreme Court Justice; this is good writing.  Again, from the article: ?In the second [case he discussed, Brown], constitutional values had evolved to the point that ?separate but equal? was no longer defensible, even if the plain language of the 14^th 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. ? 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.?

 To read the entire article, which is both good and lengthy : http://www.slate.com/id/2256458/

Here is a text of the entire speech. It is worth reading: http://news.harvard.edu/gazette/story/2010/05/text-of-justice-david-souters-speech/

 Michael

Full post as published by Texas Lawyer Blog on June 10, 2010 (boomark / email).