Justice Souter’s Judicial Philosophy

Dave Hardy has some comments on a recent article speaking of Justice Souter’s philosophy when it comes to constitutional interpretation. To quote Justice Souter directly:

A choice may have to be made, not because language is vague, but because the Constitution embodies the desire of the American people, like most people, to have things both ways. We want order and security, and we want liberty. And we want not only liberty but equality as well. These paired desires of ours can clash, and when they do a court is forced to choose between them, between one constitutional good and another one. The court has to decide which of our approved desires has the better claim, right here, right now, and a court has to do more than read fairly when it makes this kind of choice.

The problem with this balancing interest is that it leaves entirely too much room for judges to make-up law from whole cloth, using their own preferences rather than being tied to the text of the document. The New York Times went on to note:

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.”

I don’t think it’s so much a dream of a simpler constitution, and even a textualist is going to acknowledge there are places where the text is less than clear. But where the text is clear, we should follow it. The big problem with Souter’s approach is that it’s hard to see how his balancing test keeps the judiciary constrained to its judicial powers. The kind of balancing of interest that Souter calls for is more properly the realm of Congress, and not the judiciary.

I don’t go as far as some conservatives that suggest the courts should never interfere with the prerogatives of the elected branch. Starting with a default presumption that Congress wouldn’t pass an unconstitutional law is just as much a fallacy as what Souter believes. Where the law is ambiguous, or where Congress’ claims of power are so wildly beyond their constitutional mandate, the courts needs to act. Souter brings up segregation. Segregation should have been outlawed by the 14th Amendment. That wasn’t any evolving constitutional doctrine, so much as a half century of the judiciary trying to escape its clear mandate. I agree with what Dave Hardy says on the matter:

Doesn’t that mean he accepts that Plessey was right when it was decided, “right here, right now,” and became wrong half a century later? I’d rather prefer to think it was wrong and odious from the beginning, for reasons entirely external to the judges…. it just took them half a century to see the light.


5 thoughts on “Justice Souter’s Judicial Philosophy”

  1. It’s always amused me how libs argue that the courts “gave” us desegregation, which they never would have said if the courts had enforced the 14th Amendment from the day it was enacted. If a bank robber finally returned his loot 50 years later, would we thank him for his generosity or would we say it’s about time?

  2. The problem with this is that Souter did not dissent, or vote, against an individual right to keep and bear arms. In fact, reading his dissent, he states that the 2nd Ammendment does indeed protect an individual right to keep and bear arms. Justice Breyer’s dissent also does this.

    What they dissented on, and what their vote was based on, was whether the DC gun ban violated this right. They were wrong (as a ban on guns, by definition, violates the 2nd ammendment rights of at least some individuals), but they need to be chastised on what they did, not on what the media SAYS they did.

  3. Fair point, but see David Hardy’s write up on the Heller dissent. While the opening section says it is a right that can be enforced by individuals, later portions of the opinion suggest it might not be, after all. The whole thing is too incoherent to say what it really does or doesn’t stand for, beyond the obvious result of “we like handgun bans.”

  4. Good point. My issue is more with the media claiming that the Heller decision was about the individual right to keep and bear arms. And that it was only 5-4, so a very close decision on that right. You are correct that Stevens decends into incoherence concerning the ability of local municipalities to restrict the 2nd Ammendment, but I still take his early remarks to show that the right to keep and bear arms is an individual right. And since Justice Breyer agreed in his dissent, and all four dissenting justices signed both dissenting opinions, it tells me that an individual right to keep and bear arms was agreed to 9-0.

    The problem for me is that that is not what the Heller decision was about. Despite how the media wants to play it, the 5-4 decision was about whether the DC gun ban violated the 2nd Ammedment. It was not, as the Times stated, “from which Justice Souter dissented, declaring an individual right to gun ownership under the Second Amendment. ” Justice Souter did not dissent on an individual right, only on the ability of local municipalities to restrict that right.

    And he got that wrong.

  5. I tried to reply over at Dave’d, but my comments are rejected constantly by the spam filter.

    I thought at first that this was him trying to figure out how to say “the court is infallible,” but I really think it’s just a 100% post-modern philosophy: everything is relative, nothing is absolute. He really does believe that he can sort out the “truth” in the absurd relativity of his worldview.

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