While the younger generation apparently doesn't care, retired Justice Souter just gave a commencement address over at Harvard. Didn't they get the memo? The Boston Globe summarized his message:
Consider the facts of the case. Read the Constitution. Make a decision.
If only it were that easy, retired Supreme Court Justice David Souter said today at Harvard's 359th commencement.
Souter challenged what he called the "fair reading model" of constitutional interpretation: a constitutional claim is made, the judge looks at the Constitution (or law in general) to see if it is legitimate and the facts simply either do or do not support the claim. Life tends to be harder:
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
The problem here is that the analysis here often requires the judge to decide a question where various constitutional values compete and/or where the provisions are not absolute, even if (see the First Amendment) they literally are read that way. He cited the Pentagon Papers Case -- the government lost, but not because the First Amendment was deemed to be absolute.
Also, the Constitution is applied so "their meaning [is] for the living" in part because "we cannot share every intellectual assumption that formed the minds of those who framed" it. This is showed by the changing understandings of the breadth of the Equal Protection Clause. As he noted:
The Constitution is a pantheon of values, and a lot of hard cases are hard because the Constitution gives no simple rule of decision for the cases in which one of the values is truly at odds with another. Not even its most uncompromising and unconditional language can resolve the potential tension of one provision with another, tension the Constitution’s Framers left to be resolved another day; and another day after that, for our cases can give no answers that fits all conflicts, and no resolutions immune to rethinking when the significance of old facts may have changed in the changing world.
The lack of simplicity is a challenge, the fear of "judicial activism" in part a desire for a simpler realm. But, such is an "illusion and repose is not our destiny." A closer look at those who claim to be more restrained, including self-professed conservatives, underlines the point. The need to determine the proper result among competing values as applied to modern reality is a complex understanding, one different judges apply in different ways. A confirmation hearing is a good place to get a window into how that person fits in. You know, if any of the kids today care and all.
Justice Souter expressed his philosophy in one of his final opinions, a somewhat atypical personal one that provided a sort of judicial farewell:
Changes in societal understanding of the fundamental reasonableness of government actions work out in much the same way that individuals reconsider issues of fundamental belief. We 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. Just as attachment to the familiar and the limits of experience affect the capacity of an individual to see the potential legitimacy of a moral position, the broader society needs the chance to take part in the dialectic of public and political back and forth about a new liberty claim before it makes sense to declare unsympathetic state or national laws arbitrary to the point of being unconstitutional. The time required is a matter for judgment depending on the issue involved, but the need for some time to pass before a court entertains a substantive due process claim on the subject is not merely the requirement of judicial restraint as a general approach, but a doctrinal demand to be satisfied before an allegedly lagging legal regime can be held to lie beyond the discretion of reasonable political judgment.
He also noted that the judge was not simply providing idiosyncratic decision making here:
It goes without saying that the conception of the reasonable looks to the prevailing understanding of the broad society, not to individual notions that a judge may entertain for himself alone [cite omitted] and in applying a national constitution the society of reference is the nation. On specific issues, widely shared understandings within the national society can change as interests claimed under the rubric of liberty evolve into recognition[.]
He ended his address on a general note:
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.
So, yeah, the confirmation of the replacement of his friend, who did this for 35 years, is sort of something to care about. If the debate is going to be about her sexuality or other b.s., yes, it is not something to care about. But, Dahlia Lithwick and others have the responsibility to make it about the former.