Linda Greenhouse's Thursday online column, "Justice Souter's Class [1],"
began and ended with a shout of joy over a Harvard commencement speech
delivered by recently retired Supreme Court Justice David Souter, appointed by George H.W. Bush to the Supreme Court, but who
bitterly disappointed conservatives by often siding with the Supreme
Court's liberal bloc.
Greenhouse, just like liberal Washington Post columnist E.J. Dionne [2]
on Wednesday, saw Souter's speech as a welcome attack on the "originalist"
philosophy of conservative Justice Antonin Scalia, though Dionne was
more certain than Greenhouse about the points Souter was trying to
make. (He claimed Souter "took direct aim at the conservatives'
favorite theory of judging.")
Greenhouse, the paper's former longtime Supreme Court reporter, also lavished love on Souter [3] upon his retirement from the court in 2009, timed so he could be replaced by a Democratic president.
From Greenhouse's Thursday post:
So it was with a mixture of relief and something close to joy that I listened last week to David Souter's commencement address at Harvard, his undergraduate and law school alma mater, which awarded him an honorary degree. (I was in the audience as a member of Harvard's Board of Overseers; like the thousands of others seated at the outdoor gathering, I had no idea what to expect.)
As a matter of immediate impact, this was not a speech to rival Secretary of State George C. Marshall's announcement, in his Harvard commencement address in 1947, of his plan for the reconstruction of postwar Europe. Nor is it likely to attain the resonance of Winston Churchill's declaration the previous year, upon receiving an honorary degree at Westminster College in Fulton, Mo., that the cold war had begun and that "an iron curtain has descended" across Europe.
But for those who care about the Supreme Court, Justice Souter served up some rich fare: his own vision of the craft of constitutional interpretation and a defense of the need for judges to go beyond the plain text - what he called the "fair-reading model" - and make choices among the competing values embedded in the Constitution. Doing this was neither judicial activism nor "making up the law," he said; rather, it was the unavoidable "stuff of judging," and to suppose otherwise was to "egregiously" miss the point of what constitutional law is about.
....
Justice Souter named no contemporary names. He did not mention Justice Antonin Scalia, whose "originalist" doctrine of constitutional interpretation made inroads in recent years, most notably in the 2008 decision, from which Justice Souter dissented, declaring an individual right to gun ownership under the Second Amendment. But I have to think he had Justice Scalia in mind when he observed that "behind most dreams of a simpler Constitution there lies a basic human hunger for the certainty and control that the fair-reading model seems to promise."....
Justice Souter said he well understood, and indeed had shared, that "longing for a world without ambiguity, and for the stability of something unchanging in human institutions." But he said he had come to accept and even embrace the "indeterminate world" in which a judge's duty was to respect the words of the Constitution's framers "by facing facts, and by seeking to understand their meaning for the living."
Greenhouse floated away at the end on a Souter-powered steamcloud of joy.
I wrote earlier in this column that I responded to Justice Souter's speech with feelings of relief and joy. The relief came from seeing that this thoughtful man, a young 70, has not retreated fully into the privacy he cherishes, but was willing after all to share his wisdom. The joy came from supposing that he might keep on doing it.
Greenhouse
likes liberal justices besides Souter; she wrote a biography, "Becoming
Justice Blackmun," about the man who wrote the Court's
notorious abortion rights opinion Roe v. Wade. And she clearly loved
ultra-liberal Justice William Brennan, as revealed in a July 2008 Q&A session [4]
on nytimes.com before her retirement. Centrist Justice Anthony Kennedy?
Not so much. Greenhouse found that his ruling against what she called
"so-called partial birth abortion" was patronizing toward women.
Matthew Franck at National Review Online [5]
was slightly less impressed with Souter's speech, accusing the retired
justice of attacking straw men. Franck's headline: "David Souter Dumbs
It Down."
Clay Waters is editor of Times Watch [6]. You can follow him on Twitter [7].