Mirror of Justice

On May 27, Justice Souter, who retired from the Supreme Court for about a year ago, delivered a commencement address [Here] at his alma mater Harvard University. The New York Times praised his address in an editorial [Here] today, and Linda Greenhouse in her web log did the same this past Thursday [Here].

There is little question about Justice Souter’s acumen and his grasp of the law. However, I have several questions and some concerns about his understanding of the text of the Constitution and his method of interpreting it. Readers of and contributors to the Mirror of Justice will recall my earlier posting in May [Here] concerning Professor David Strauss’s new book The Living Constitution where I disclosed some of my own ideas about the importance of the Constitution’s text and its proper interpretation.

The thrust of Justice Souter’s address was to offer a theory of reading, interpreting, and applying the Constitution. His judicial philosophy appears to center on a distancing from (and critique of) the method he identifies as the “fair reading” model. He characterizes that model as a straight-forward approach that decides Constitutional cases by “reading fairly and viewing facts objectively.” He then illustrates his understanding of the “fair reading” model with the example of the twenty-one year old who wishes to run for the Senate; however, the age requirement of Article I mandates that a senator must be a citizen who has “attained the age of thirty years.” The Constitutional solution to the claim made by the twenty-one year old is a straight-forward application of the text. What Justice Souter does not mention about this approach to Constitutional application is that many times a day it is precisely this method of using the Constitution that supplies the solution to claims that are in dispute. When one thinks about statutes and regulations, the “fair reading” model also supplies the method or resolving questions surrounding the meaning of the law in an overwhelming majority of the cases. Because he fails to take stock of this important reality, I find Justice Souter’s assertion that “the fair reading model has only a tenuous connection to reality” problematic. His follow-up assertion that “Even a moment’s thought is enough to show why it is so unrealistic” is equally thorny.

I agree that in a small percentage of cases regarding all legal texts, including the Constitution, something more than plain meaning application of the text is in order. But rather than focusing on developing a coherent, rigorous, and objective method of Constitutional interpretation, the Justice instead opines that the Constitution “contains values that may well exist in tension with each other” and are not in harmony with one another; thus, a judge must wrestle with these values and determine which values must trump others. He proceeds to illustrate his contention by considering two important Supreme Court decisions including the Pentagon Papers case.

In the Pentagon Papers litigation, Justice Souter reminds us that the United States was represented by Irwin Griswold, then Solicitor General, who argued that the prior restraint issue was only one of the competing values at stake in the case; therefore, it was essential to look at all the various Constitutional provisions at issue, not just the First Amendment.  Interestingly, Justice Black, whom Justice Souter reminds us, was once described by Justice Cardozo as “having one of the most brilliant legal minds”, took a tough questioning stance against the Solicitor General but essentially presented a literalist view of the First Amendment, which Justice Souter suggests parallels the “fair reading” method. Justice Souter nonetheless appears to appreciate the tack pursued by General Griswold because Justice Black’s focus on the text of the First Amendment “fails because the Constitution has to be read as a whole, and when it is, other values crop up in potential conflict with an unfettered right to publish.” Here, Justice Souter brings in his “other-values” argument by concentrating on what he calls “a conflict of approved values.”

It is at this point in his address that Justice Souter forgets a very important detail about the Constitution and how one, including a judge, ought to work with it. Anyone involved with Constitutional litigation must realize that it is not other values that are in conflict with the text of the First Amendment; rather, it is other texts of the Constitution that have a bearing on the meaning and role of the First Amendment in the resolution of the Pentagon Papers case. Justice Souter maintains that “the explicit terms of the Constitution do not resolve that conflict when it arises.” In respectful disagreement, I think they do and submit that Justice Souter has, in effect, conceded the point by bringing in the text of the whole Constitution rather than one element of it, i.e., the First Amendment, when he compliments General Griswold’s methodology.

Here in his address, Justice Souter asks a series of rhetorical questions about values versus the text of the Constitution and its “fair reading”: “Should the choice and its explanation be called illegitimate law making? Can it be an act beyond the judicial power when a choice must be made and the Constitution has not made it in advance in so many words?” He then quickly responds to the rhetorical questions he has just raised by saying, “You know my answer. So much for the notion that all of constitutional law lies there in the Constitution waiting for a judge to read it fairly.” It strikes me that General Griswold was doing just that, i.e., trying to read the Constitution—all of it—fairly. It was Justice Black who took the far more literal and narrow approach to Constitutional adjudication by concentrating on just one of its provisions, i.e., the First Amendment. Yet, Justice Souter maintains that the Pentagon Papers case demonstrates “how unrealistic the fair reading model can be.” Regrettably, I do not share Justice Souter’s conclusion; moreover, in spite of Justice Souter’s argument criticizing the “fair reading” approach, an analysis of his approval of the case’s outcome reveals that the literalist approach of one provision, the First Amendment, prevailed in the determining the outcome of the litigation.

As he concludes his address, Justice Souter asserts that the “fair reading” method “fails to account for what the Constitution actually says, and it fails just as badly to understand what judges have no choice but to do.” He maintains that the Constitution is “a pantheon of values” and that the Constitution “gives no simple rule of decision” for cases where competing values are in conflict with one another.

But it is, first and last, the text, the entire text of the Constitution that must form the basis of resolving the legal dispute and the dispute about competing claims and values. The Founders did not intend to give us an incomplete list of values that are important to the American people; rather, they gave us a basic law found in a coherent text that would assist us in regulating our lives in common under the rule of law. I may agree with Justice Souter that a mechanical application of a particular text dealing with a particular “value” is an unwise method of Constitutional adjudication. But I cannot agree with his assertion that the “fair reading” of the Constitution—again, all of it—“egregiously...misses the point” of Constitutional adjudication. From my humble perspective, the “fair reading” method is not “a simplistic view of the Constitution” that “devalues our aspirations” [whatever those aspirations are and who chooses them]; rather, it is a holistic approach to understanding and applying the Supreme law of the land to difficult cases which must nevertheless be resolved by a coherent understanding of the law that is specified rather than unenumerated “values” which are not.

In spite of these differences, I share some of Justice Souter’s concluding remarks when he says: “we can still address the Constitutional uncertainties the way [the Founders] 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.” But I add, in doing so, we must not let the passing fancy of the living disregard the immutable truths identified by those who preceded the present generation.

RJA sj