Tuesday, June 15, 2010

Fair Reading

Linda Greenhouse positively gushes over the commencement address David Souter delivered at Harvard.

As she describes it, his argument is as follows: Judges ought go beyond any "fair-reading model" and "make choices among the competing values embedded in the Constitution." The American people want "to have things both ways" and so the "court has to decide which of our approved desires has the better claim." Those who limit themselves to fairly reading the law "'egregiously' miss the point" driven by longing "for a world without ambiguity, and for the stability of something unchanging in human institutions." He, on the other has come to "embrace the 'indeterminate world'" and to understand that "meaning comes from the capacity to see what is not in some simple, objective sense there on the printed page." As evidence/illustration he cited the Pentagon papers, which required the court to weigh national security against the First Amendment, and Brown v. Board, in which the "meaning of facts" and therefore decision, but not the facts themselves, changed from the earlier Plessy case.

An op-ed in the Journal, critiques Souter's argument by noting that Plessy went every bit as much as Brown beyond a fair reading. This critique misses its target because Souter's argument -- shockingly, but inarguably -- hinges on Plessy being correctly decided (one can only guess his view of Dred Scott).

Souter is certainly right to this degree: Justices cannot hide underneath a text to escape responsibility for their decisions; Ultimately, they have the power.

On the other hand, his application of the banal liberal conceit that Conservatives are afraid to boldly go is the opposite of profound. Prudence dictates that an unelected Court in a Democratic system -- even one that recognizes, with Souter, the ultimate difficulty of fairly reading -- operate roughly within the parameters of public expectation (which it can, in turn, help to set). The American people plainly want their Court fairly-reading, not approving/deciding-amongst our desires -- we put obscure lawyers skilled at reading legal texts, not revered philosophers or trusted teachers, on the court.

Put slightly differently, the difference between Souter and Scalia is that not, as Greenhouse would have it, a sort of existential bad faith on Scalia's part. Rather, Scalia is more conscious, or conscientious, than Souter of the context in which Judges operate. While to Souter, the common notions of what Judges ought do are something to be overcome, to Scalia, they form the basis of Judicial authority in a Democratic society.

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