[More: Linda Greenhouse has a rather different take here.]
I admit to having enough trouble keeping up with the reading I have now without feeling overwhelmed at times (I think life might have been easier when my experience with the Internet was only a matter of reading a few bulletin boards, providing more energy to regularly read a few general issue periodicals) that reading stuff like National Review is not on my schedule. That sort of thing is achieved by some stuff at Volokh Conspiracy and such. I guess it is a matter of reading more on certain subjects; the net result is probably okay.
But, I did read "David Souter Dumbs It Down," a criticism of Souter's commencement speech discussed here and elsewhere. [Nice use of the botched call to show the subjective nature of umpire judgments vs. Roberts' metaphor.] Let me say upfront that the address was by nature a brief affair and not an in depth discussion of Souter's views. Thus, without more, it might be said to be a bit shallow. A bit ungenerous, but okay. It also need not be seen as some masterpiece, but it is imho an impressive basic criticism of simple minded originalism and cries of "judicial activism" in part because judging is a subjective enterprise. But, NR goes further.
First, it's nice the guy actually read it, unlike Mr. Whelan, since it is something that can be perused pretty quickly. But, ah, the simplistic strawmen, tellingly in a piece that suggests Souter tosses them out as well. Early on, we are told this can't be an attack on "originalism" because Souter himself repeatedly used the values of the Framers to argue his point. But, that is not the point. The Souters of the world don't think -- especially in reply to self-professed originalists -- that such a thing is useless. No, it is of limited value. Who is dumbing down here?
The article also suggests Souter's core nemesis is a path of interpretation that no one actually thinks is true. I will quote the excerpt the criticism cites:
The charges of lawmaking and constitutional novelty seem to be based on an impression of the Constitution, and on a template for deciding constitutional claims, that go together something like this. A claim is made in court that the government is entitled to exercise a power, or an individual is entitled to claim the benefit of a right, that is set out in the terms of some particular provision of the Constitution. The claimant quotes the provision and provides evidence of facts that are said to prove the entitlement that is claimed. Once they have been determined, the facts on their face either do or do not support the claim. If they do, the court gives judgment for the claimant; if they don’t, judgment goes to the party contesting the claim. On this view, deciding constitutional cases should be a straightforward exercise of reading fairly and viewing facts objectively.
Souter argues that it is a tricky business (and often not a matter of just "the" provision, either) to do this. The NYT op-ed provides this as a core message:
Justices have to understand the “meaning” of the facts presented to them, he said, going far beyond the objective sense on the printed page. And there is only one way to fully understand that meaning:
“The meaning of facts arises elsewhere,” he said, “and its judicial perception turns on the experience of the judges, and on their ability to think from a point of view different from their own.”
But, according to the critic here, Souter is putting up a strawman. Having read some cries of activism and the argument that it is oh so easy to show that the judges aren't applying the text (it's just so black and white!), I am not so sure. Next, we are told:
And what of the counter-arguments employed by Souter to knock down this straw man? Well, it is often said as an excuse for judicial activism that the Constitution contains “deliberately open-ended” provisions. But the repeated assertion does not make it so. Take the due process clause, one of Souter’s examples. It has been melted down so many times in the judicial crucible, poured into so many new molds, and hammered and polished into so many new shapes, that it’s easily forgotten that it originally had nothing to do with courts of law striking down such substantive policy choices as prohibiting slavery, regulating working hours, restricting abortion, or banning sodomy. And why, when a seemingly “open-ended” provision is encountered, does it always seem to follow that the judges' view of its meaning must prevail over the views of others?
Put aside the substantive policy issue -- and given the anti-slavery view that the clause DID bar slavery the criticism if anything makes Souter's point in a fashion -- the procedural aspects are not open-ended either? Oh? Evidence please. What "narrow" meaning is found in "due process of law," I wonder. As to the last point, is this a criticism of judicial review? If not, if it suggests that the judges' specific view always "prevail," it is patently false. Does the author realize that Justice Stevens thinks the death penalty is unconstitutionally applied, but concurred because of the state of the law as a matter of precedent? A restraint found in a myriad of cases. Such pablum.
The criticism then attacks Souter's competing values discussion with more pablum:
But the Constitution is itself the effort to harmonize those things, and the work of judging, in cases that encounter the tension between them, is to figure out what the Constitution is itself saying to us about their relation to each other. Only the originalist is interested in doing this work. Is David Souter interested?
More making his point for him. Apparently, originalists are special, while the others are just self-righteous sorts that don't look at the Constitution, but make things up as they go along or something. Souter's point is that the Constitution itself is written in open-ended and often competing language, so looking at the Constitution does not bring easy answers. That is what he did too. He just realized things were not so easy when the judges try to figure out how to decide a particular case. The fact that -- as Madison and Hamilton realized in the Federalist Papers as did others -- that the meaning will come with the application over time is turned into this:
His judges are politicians–just more detached ones, answerable to no one but themselves, and wiser even than the Constitution they pretend to interpret.
Who is Scalia answerable to when he things "equal protection" doesn't really apply to homosexuals? Souter's use of Plessy and Brown to show how the meaning of that term changes over time also was met with sarcasm:
Except that in the Plessy case, there is this inconvenient fact of Justice John Marshall Harlan’s famous dissent–which Souter never mentions. He was, evidently, more enlightened than his colleagues. But was he right? Oh now, Justice Souter might say, don’t go bringing up that foolish “fair reading of the Constitution” stuff. Haven’t I just been telling you that things are more complicated than this? Okay, we won’t go there. Was Harlan just sadly ahead of his time, going where the rest of the country wasn’t ready to go yet? Yeah, that may be it. But judges must decide cases in the here and now, and–sorry to be so slow about this, folks–they must get them right to the best of their ability. How does Souter’s argument about judges making a moral judgment, fit for their own age, of the meaning of the facts in a case, help a judge to decide this case, here in front of him, today? What is the moral judgment about a set of facts’ “meaning” that would be appropriate for, say, June 2010? Well, who the dickens can say? This is just about the least useful set of reflections on the art of judging that anyone with judicial experience has ever set down on paper.
Justice Harlan did not oppose segregation in public schools. He specifically said as much even when he dissented in regards to segregating private adult colleges. His Plessy dissent also spoke about how the white race would always be superior socially to the black race, but argued that should not matter in respect to civil rights. So, he wasn't quite ahead of his time on the immediate issue. But, anyways, we do have to hope judges get things right by the best of their abilities. There are always people ahead of their time ... well, up to a point, usually. Souter is honestly showing how judging will be done, using current understandings, flawed as they may be.
Such honesty is deemed worthless. Tellingly, the criticism ends by saying Souter is the one "projecting" by use of "astounding condescension" to say that those who he is criticizing here are the ones who want to believe in simplicity that simply doesn't exist. More talk of "philosopher-judges" (oh so tiresome) who cannot well you know provide a fair reading of just what the Constitution says. Can't we all be like Justice Harlan and uphold public school segregation and strike down various modern economic legislation long deemed acceptable? Oh wait. He accepted a substantive view of due process of law, at least as an alternative means of upholding privileges and immunities of citizens.
One last point. The criticism wonders if Souter means to say that Plessy and Brown both was rightly decided, each in their own era. That is an intriguing point, actually, and one not totally as stupid as the author seems to suggest. A conservative publication should be supportive of such a careful approach to overturning major social legislation, plus an "originalist" view very well might have allowed segregated public accommodations. The Boston schools precedent was telling. I don't think Souter is requiring us to make a judgment though, only showing accurately how judges decide cases in the real world, not the simple fantasy world of some.
For not dumbing it down, I am grateful to him. Hopefully, some senator will find it possible to use his words to ask Kagan about her own views. The "fair reading" model, which sounds a bit too much like Sotomayor's claimed policy of following the law, won't quite do it.