BY MATTHEW HUTCHINS
In recognition of Constitution Day, Retired Associate Justice of the Supreme Court David Souter ’66 spoke at Harvard with Professor Noah Feldman, who served as Justice Souter’s law clerk in 1998, about the Constitution, the Court, and his plans for retirement. Speaking just one week after the start of the first Court term after his retirement, Justice Souter explained his departure as the beginning of a new period of engagement in public life. “I’ve got a Brandeisian element in me that says that the real life of the nation is lived in its cities and towns across the length and breadth of the republic, and I want to go back to mine and try to do something useful there.” He noted, however, that it is difficult to return home after service in Washington. He said that before leaving his post he sent a message to Justice Sotomayor, who was then going through confirmation hearings, saying that, “What you are going through right now is the easy part. It’s getting off the court that’s hard.”
Justice Souter is already participating in a task force of the New Hampshire Supreme Court Society to develop a set of standards for a curriculum in civic education. “The root problem of defending judicial independence is that if one has no sense of the structure of government, even as imperfect a structure as ours, then the notion of judicial independence has no traction.” With a large proportion of the nation having no specific understanding of the three branches of government, Souter sees a danger that the foundation of the republic will weaken to the point that it imposes a tax on judicial independence. He also has plans to serve as a part-time judge in the First Circuit Court of Appeals in Boston, a court on which he sat for just one day before being elevated to the Supreme Court in 1990.
Responding to the criticisms of the constitution which were advanced by the panel of scholars that preceded his appearance, Professor Feldman asked Justice Souter if we need a day to venerate the Constitution. Souter said, “I take a somewhat more pragmatic approach than the venerationists do, that is, the approach that if it ain’t broke, don’t fix it.” While some of the professors who had spoken found serious structural barriers to the democratic functioning of the Constitution and the reform of its deficiencies, Justice Souter quoted Robert Frost to say, “But waste is in the essence of the scheme. One part of the essential nature of the constitution is internal conflict. It was intended to be a document of internal conflict.” He highlighted the fact that many of the barriers to efficient governmental action were deliberately placed in the Constitution to prevent the excessive concentration of power at the highest levels: “It is well,” he said, “for ourselves to not let ourselves to go too far.”
Asked about the directional development of constitutional values, Justice Souter pressed the point that the Constitution is a document that wants it both ways, which exhibits competing values that are in tension. “One cannot, for example, in interpreting the Fourth Amendment, say that it is dedicated to a reasonable respect for privacy. That doesn’t get you anywhere, because, number one, it uses the criteria of reasonableness, which says, you’ve got to look at two sides, and number two, even assuming that there is a libertarian direction, there is to a degree a zero sum game because it is a legitimate constitutional value to promote the even handed enforcement of the law.” Because of this inherent competition between values, Justice Souter admitted that the Court’s doctrines cannot always be perfectly coherent. “We are not inteded to have a system in which the coherence of values develops any one value as far as it can possibly go, because there is usually a competitor.”
The inherent tension between competing values has important implications for Justice Souter in the extent to which precedent can predetermine the outcome of a case. “What one has to remember, is that maybe we are at the point at which the line of precedent has developed as far as it should be developed, and there should be in effect a counter-line drawn. If an appellate judge will not accept that as a possibility, then the fix is in before he goes on the bench.” Even with reference to his own writing, Justice Souter admitted the inevitability of some inconsistencies. “We tend to follow our own precedent. I haven’t always done that. I did a one-eighty on nude dancing. But by and large we hope that we work out the problems we are working on in a sufficiently reasonable way that what appeared to us five years ago as sensible is going to seem pretty much the same five years later.”
For Justice Souter, the desire to maintain consistency can only be satisfied to the extent that a pragmatic approach to the case demonstrates a factual basis for applying normative judicial principle. He referred to Judge Learned Hand as a master of the bottom-up method of judicial analysis to which he ascribes, as contrasted against a top-down method of analysis. Justice Souter believes that the analysis of the facts of the case must predominate over application of normative principles. “All normative propositions, constitutional and others, are in my judgment pragmatic in origin.”
Asked about the value of originalism, Justice Souter said that it is a fine method of analysis if you don’t expect too much from it. “Usually Originalism cannot give you very specific answers.” Justice Souter expressed doubts about the ability of a “hard originalist” judge to employ originalism to find an answer very frequently. “What we have to bear in mind is that we are by and large answering questions for which there is not a clearly right or a clearly wrong answer. The questions, however, are capable of having a better answer or a worse answer. The idea is to try to get the best reasons to support the better answer.”