Justice Souter delivered the commencement address at Harvard College last week. His theme was the challenge of interpreting the Constitution, a document best understood as “a pantheon of values,” where many open-ended clauses often lie in tension with one another. How is a judge to interpret such a document? One answer is to argue that the text, or the intent of the framers, standing alone, guides the justices in their pursuit of right answers. Anything else is law-making, or judicial activism. But Justice Souter argued, clearly and forcefully, that “for the cases that tend to raise the national blood pressure, the fair reading model has only a tenuous connection to reality.” For the really hard cases, when constitutional values conflict, no simple rule of decision exists. When deciding those cases, what must a judge do?
This is where Justice Souter parts company with those who yearn for a “simpler Constitution.” In his words, “behind most dreams of a simpler Constitution lies a basic human hunger for the certainty and control that the fair reading model seems to promise.” But he is far too kind, because I don’t think for one moment that those who “dream[ ] of a simpler Constitution” are seeking certainty and control. They know better. All the same, Souter argues that while they seek certainty, he holds on to the “belief that in an indeterminate world I cannot control it is possible to live fully in the trust that a way will be found leading through the uncertain future.”
At the heart of Justice Souter’s constitutional vision lies his recognition about the subtlety of constitutional meaning. He offers the example of segregation, and the Court’s reversal of Plessy in Brown. To the justices in 1896, the meaning of segregation was quite different for the justices in 1954. This is not to say that the 1896 Court was wrong, or that the 1954 justices were activists. Rather, Souter explains, “[t]he meaning of facts arises elsewhere 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.” This is only a recognition of the centrality of judicial diversity as an integral component of a fair and independent judiciary.
This is a remarkable speech, worth reading in its entirety. Justice Souter’s lessons about experience the ability to think “from a point of view different from their own” are worth remembering as we set out to replace Justice Stevens.