Davis Souter's commencement speech at Harvard

June 5, 2010 1:18 PM

Now-retired Supreme Court Justice David H. Souter got invited to deliver this year's commencement address at Harvard. He used the opportunity to expound on his legal philosophy and to give a not-too-subtle smack down to the originalists he so often argued with on the court.

Some further analysis from E.J. Dionne in the Washington Post, Linda Greenhouse in the New York Times, and Stephen Prothero on his CNN-hosted blog.

posted by AwkwardPause (37 comments total)

Not Souter!
posted by Sys Rq at 1:26 PM on June 5, 2010 [3 favorites]

Lawyers adopt interpretative "philosophy" that more often than not gets to the outcomes they personally favor. Film at 11.
posted by Father Tiresias at 1:26 PM on June 5, 2010 [1 favorite]

BTW -- you can listen to Souter's commencement address here.
posted by ericb at 1:36 PM on June 5, 2010 [1 favorite]

Also -- you can view his remarks here (starting at 1:53:32).
posted by ericb at 1:42 PM on June 5, 2010 [2 favorites]

Scalia must hate George H. W. Bush.

Reagan appointed Scalia. The elder Bush appointed Souter, who was, at the time, considered a stealth candidate -- he didn't have much of a paper trail, and the concern was that Souter would be a fire-breathing conservative that would help lock down the court.

He turned out to be the opposite, and was a bit of a thorn in Scalia's side, and now this.

Of course, Scalia won't give a shit, anyway...
posted by Cool Papa Bell at 1:44 PM on June 5, 2010 [1 favorite]

Of course, Scalia won't give a shit, anyway...

In order for Scalia to "give a shit", he would have to be capable of rudimentary human emotion. Not much to worry about on that front...
posted by Father Tiresias at 1:45 PM on June 5, 2010 [11 favorites]

reportedly, Clarence Thomas slept through the address.
posted by shmegegge at 1:46 PM on June 5, 2010 [2 favorites]

Now what happens when we need a balanced court? Bader-Ginsberg will probably leave next, so has anyone any ideas??

My thinking is not even God Himself would think that re-balancing the court was easy. But then small miracles have happened before....
posted by David5372 at 2:00 PM on June 5, 2010

God Himself is pretty happy with the court as it is. Or maybe a leeetle more conservative and religious.
posted by DU at 2:15 PM on June 5, 2010

There can be no "rebalancing" of the court until either Scalia, Thomas, Roberts, or Alito retire/die. And since Roberts and Alito have only been on the court a few years, that leaves Scalia or Thomas.
posted by Justinian at 2:16 PM on June 5, 2010

And all I got at my UMaine commencement was Governor Baldacci making a rambling nonsensical speech about elephants and ants.
posted by dunkadunc at 2:23 PM on June 5, 2010

See, I happen to think that Souter is mostly right in terms of his judicial philosophy. Courts do, in fact, make law. That is and has always been their job.

But I also think that it's possible to hold to that judicial philosophy and still be guilty of completely making shit up which has absolutely no support in law or precedent, i.e. just because interpreting the Constitution at that level isn't a cut-and-dried proposition doesn't mean that you can do whatever the f*ck you want.

That objection doesn't seem to be something reached by Souter in his address. Which is disappointing.
posted by valkyryn at 2:28 PM on June 5, 2010 [1 favorite]

Judicial philosophy has nothing to do with anything. The same people who think they admire Souter's judicial philosophy would seethe at a justice who applied identical interpretative methods to reach an opposite result (which is quite possible).
posted by planet at 2:39 PM on June 5, 2010 [4 favorites]

Editorials from the New York and Los Angeles Times.

And sorry for calling him Davis. Oops.
posted by AwkwardPause at 2:44 PM on June 5, 2010

He used the opportunity to expound on his legal philosophy and to give a not-too-subtle smack down to the originalists he so often argued with on the court.

That gets into some dangerous territory, though, for the simple reason that words shift meanings over time - Although the courts always need to "interpret" the applicability of laws in the context of the modern world, they need to so in light of the original intent of those laws, not whatever choice of wording time has twisted into a parody of its former meaning.

Simplest example, the right to bear arms. What does a "well regulated militia" mean? Today, you might fairly read that as referring to the National Guard; When written, "militia" referred to the fact that every town had its own small group of 100% private citizens who would, when necessary, take up arms in the defense of their town, and "regulated" merely meant "trained", not "legislatively controlled". So while the courts can certainly revisit some of the implications of our 2nd amendment rights, you very much need to go by intent rather than wording.
posted by pla at 2:53 PM on June 5, 2010

Wow, that Greenhouse article is WAY more worth reading than Dionne....he presents a pretty cursory review, while she really chews on it. Great post, thanks.
posted by nevercalm at 3:01 PM on June 5, 2010

What do you do, pla, when the intent was to make a political compromise to earn votes to get a law passed, or the wording is clearly out of line with the intent?
posted by furiousxgeorge at 3:13 PM on June 5, 2010

See, I happen to think that Souter is mostly right in terms of his judicial philosophy. Courts do, in fact, make law. That is and has always been their job.

But I also think that it's possible to hold to that judicial philosophy and still be guilty of completely making shit up which has absolutely no support in law or precedent, i.e. just because interpreting the Constitution at that level isn't a cut-and-dried proposition doesn't mean that you can do whatever the f*ck you want.

Eh, Souter doesn't need to address that one. The guy who's always just making shit up is Kennedy.
posted by You Can't Tip a Buick at 3:25 PM on June 5, 2010

But I also think that it's possible to hold to that judicial philosophy and still be guilty of completely making shit up which has absolutely no support in law or precedent, i.e. just because interpreting the Constitution at that level isn't a cut-and-dried proposition doesn't mean that you can do whatever the f*ck you want.

I think it's possible to be an originalist and to still "do whatever the f*ck you want." Happens all the time.
posted by blucevalo at 3:36 PM on June 5, 2010 [1 favorite]

If Souter was speaking the truth at Harvard (and I think he was), we should take religion into account in selecting our most powerful justices, because no matter how fairly they read the Constitution and how objectively they apply the facts of a case, in the end they must, as Souter pointed out, adjudicate among competing goods.

Prothero seems to be getting a little concerned about the potential jewish head count in the supreme court.
posted by Max Power at 3:40 PM on June 5, 2010

furiousxgeorge : What do you do, pla, when the intent was to make a political compromise to earn votes to get a law passed, or the wording is clearly out of line with the intent?

Not sure I understand what you mean - Do you mean situations where the wording never matched the intent of the lawmakers?

In the case of compromise, I'd say we have to work with what we have, not what some people wanted but couldn't get through unmodified (and I would note that much of the US constitution falls into that category).

In the case of laws that just don't say what anyone thought they said (such as Texas' recent outlawing of marriage as an accidental side effect of trying to ban gay marriage), congress needs to repair them ASAP - Not 200 years later, but a year or two at most.
posted by pla at 4:37 PM on June 5, 2010

Scalia represents the absolute worst that conservative Catholicism has to offer. He is something like Jabba the Hutt meets an Americ0-Italian caricature in its worst feasible archetypal sense. I went to law school with dudes like him, only I did not have the heart (or courage) to tell them that I declined acceptance to Harvard Law. etc., out of a misplaced sense of principle, for fear that I would be abetting said neo-fascists. Speaking as the son of the son of immigrants: do not be a prick, dude. Way to drink the kool-aid of the very same folks who would have and did kick your people to the curb as soon as politically feasible. What a dick. Props to Souter.
posted by joe lisboa at 4:39 PM on June 5, 2010 [2 favorites]

pla, I'm just trying to point out how tricky the concept of intent can be. Sometimes you have no idea what the intent is, someone the intent is clearly not something that judges should base legal decisions on, such as we had to write it this way to horse trade for votes.

Take the second amendment, the intent is to arm people to defend themselves from contemporary potential threats. In our case, if I wanted to defend my town from the government or a foreign army I would need some hardware that no originalist federal judge in the country is going to let me own.
posted by furiousxgeorge at 5:16 PM on June 5, 2010 [2 favorites]

feasible, feasible, feasible, beer, feasible
posted by joe lisboa at 5:29 PM on June 5, 2010 [1 favorite]

Did somebody mention feasible beer?
posted by sciurus at 5:52 PM on June 5, 2010

Did somebody mention feasible beer?

Feasible v. Beer (1923)
posted by joe lisboa at 6:02 PM on June 5, 2010

I prefer infeasible beer.
posted by furiousxgeorge at 6:12 PM on June 5, 2010 [1 favorite]

"...the Constitution contains values that may well exist in tension with each other, not in harmony."

It's interesting how these two views of the constitution map perfectly on to the respective left and right views of society. For the right, society is a whole, organic, balanced, harmonious with every member in his or her proper place. The threat is from outsiders who attempt to overturn the old established ways in much the same way that the constitution must be protected from change. For the left, the constitution is cut through with tensions and antagonisms which stand for the ultimate social antagonism of class struggle.
posted by AlsoMike at 7:16 PM on June 5, 2010 [1 favorite]

God Himself is pretty happy with the court as it is. Or maybe a leeetle more conservative and religious.

You know, for all the hoo-ha about what the conservatives say that God wants, God Himself has never actually come out and said, "Hey, guys, abortion and gay marriage and strip clubs are bad. You shouldn't do these things." In fact, He hasn't actually said very much for a very, very long time.

For all we know, maybe He's a big fan of strip clubs and gay marriages and takes time out from His busy schedule to visit them regularly. And is all, "Aw shucks man, what's up with that?" when people worship Him and sing praises to His name, etc.

And maybe - just maybe - He'd like to see a couple more liberals on the Supreme Court, doing liberal things.
posted by WalterMitty at 7:18 PM on June 5, 2010 [2 favorites]

Maybe God's understanding of what is and is not a sin has evolved over the years, like it did between the OT and the NT.
posted by furiousxgeorge at 7:47 PM on June 5, 2010

Scalia represents the absolute worst that conservative Catholicism has to offer. He is something like Jabba the Hutt meets an Americ0-Italian caricature in its worst feasible archetypal sense. I went to law school with dudes like him, only I did not have the heart (or courage) to tell them that I declined acceptance to Harvard Law. etc., out of a misplaced sense of principle, for fear that I would be abetting said neo-fascists. Speaking as the son of the son of immigrants: do not be a prick, dude. Way to drink the kool-aid of the very same folks who would have and did kick your people to the curb as soon as politically feasible. What a dick. Props to Souter.
posted by joe lisboa at 7:39 PM on June 5 [2 favorites +] [!]

What in the world are you talking about?

Even if you dislike conservatives (and your post suggests that you do), it is silly hyperbole to say that Justice Scalia is "the absolute worst that conservative Catholicism has to offer." We can assume for the sake of argument that all judges decide cases by the their personal preferences, and I can still cite many cases where Justice Scalia plays against type and generates or helps to generate a "liberal" outcome. That was the case with flag burning, constitutional limits on punitive damages, Confrontation Clause cases, and many others. In order to be "the absolute worst," I think that he would need at least to be more consistent in his outcomes.

Ditto for your claim that he is "like Jabba the Hutt meets an Americ0-Italian caricature in its worst feasible archetypal sense." I think the worst Italian-American caricature is the Jersey Shore archetype that resurfaced recently on the MTV reality show that bears that name, not a father of nine from Ewing who is well versed in the classics and prefers to attend opera in his spare time. Again, your hyperbole really tends to bring down your post.

Finally, if you really did reject Harvard Law out of principle (for whatever TTT place you ended up), then you were pretty ridiculous for applying in the first place. Maybe you were so highly sought after that they had agreed to waive the application for you, or at least to waive the $50 application fee or whatever it is. But I have never heard of that, and if we take you at your word, that means you are probably the sort of person who spends hours and a more-than-negligible amount of cash trying to affiliate with an institute that you ultimately decided was a neofacist institution. (Harvard. Neo-facist. Right.) And that's taking you at your word, despite the reasons that you give us in your post not to do so. All in all, pretty ridiculous.
posted by Slap Factory at 8:06 PM on June 5, 2010 [1 favorite]

[A few comments removed. Insert bartender metaphor here.]
posted by cortex at 6:41 AM on June 6, 2010

[cortex- T'rough the door, or t'rough the window!]

It's interesting how these two views of the constitution map perfectly on to the respective left and right views of society. For the right, society is a whole, organic, balanced, harmonious with every member in his or her proper place. The threat is from outsiders who attempt to overturn the old established ways in much the same way that the constitution must be protected from change. For the left, the constitution is cut through with tensions and antagonisms which stand for the ultimate social antagonism of class struggle.

The problem here is in believing that most people are principled. In reality, most people in politics decide what they want to do and then find some legitimate sounding justification for it. It's not "I believe in state's rights, therefore X", it is "I believe in X, therefore state's rights".

Ditto for your claim that he is "like Jabba the Hutt meets an Americ0-Italian caricature in its worst feasible archetypal sense." I think the worst Italian-American caricature is the Jersey Shore archetype that resurfaced recently on the MTV reality show that bears that name, not a father of nine from Ewing who is well versed in the classics and prefers to attend opera in his spare time. Again, your hyperbole really tends to bring down your post.

When you are a public figure in a position of power, you are judged on your use of that power. Not whether you like kitties and the light classics.

Clinton- good president, bad husband.
Bush, Jr.- bad president, good husband.

Good people can do bad things, and bad people can do good things. If we are judging someone's performance in a job, we can't ignore their bad acts in that job in favor of their good acts at home.
posted by gjc at 7:42 AM on June 6, 2010

Kagan Memos Released
posted by homunculus at 9:02 AM on June 6, 2010

I applied to all of the top ten institutions and was accepted everywhere save Yale. Michigan and Chicago offered me the most cash and with family, romantic, and musical ties to Detroit and Ann Arbor - and again, a misplaced sense of quote if I tell the Ivy League to fuck off I am somehow superior to them unquote - I opted for Michigan. I applied with my then-SO to all of the same schools but she was accepted only at Michigan so away we went. We broke up three months into the 1L year and she took up with a wealthy fellow student from the east coast shortly thereafter.

Despite my alcohol-fueled rages on the internet about the whole sordid affair and a chorus of people telling me I made the biggest mistake of my life by turning down Harvard et al., I now regret nothing as I would never have met the love of my life (whom I am marrying in October) nor worked up the courage to start and front my own band(s) and release my own records had I not stayed in Detroit and SE Michigan.

Scalia is still a prick though. I stand by that claim stone-cold sober.
posted by joe lisboa at 3:26 PM on June 6, 2010 [1 favorite]

That was in response to Slap Factory, above.
posted by joe lisboa at 3:27 PM on June 6, 2010

a chorus of people telling me I made the biggest mistake of my life by turning down Harvard

On the other hand, if you had attended Harvard, you'd have to spend the rest of your life listening to the peanut gallery say, "And you went to Harvard..." every time you did something mildly stupid. Conan O'Brien must hear that phrase twenty times a day. Before breakfast.
posted by stavrogin at 6:48 PM on June 6, 2010