Parsing the Court: Did Souter Offer Advice to Gay-Marriage Proponents?

Walter Dellinger, a former solicitor general, says Justice David H. Souter, front right, sent a subtle message.
Walter Dellinger, a former solicitor general, says Justice David H. Souter, front right, sent a subtle message. (By J. Scott Applewhite -- Associated Press)
By Robert Barnes
Washington Post Staff Writer
Thursday, July 2, 2009

Anyone who follows the Supreme Court closely becomes something of a Kremlinologist.

It's a constant search to read between the lines of opinions, parse the structure of sentences and find the message in what's missing as well as what's written. The justices think the opinions they write or the dissents that signal their disagreements speak for themselves. But are they saying something else as well?

And so in the final days of the court's term, court watchers were discussing the difference between "sympathy" and "empathy," and also whether departing Justice David H. Souter was advising supporters of same-sex marriage to go slowly.

On the empathy front, the possible messenger was Justice Ruth Bader Ginsburg. The forum was the court's decision that officials in New Haven, Conn., had discriminated against Frank Ricci, a white firefighter, and others who joined his suit, when the city threw out promotion tests because no African Americans had qualified for advancement.

Ginsburg was a strong dissenter, saying New Haven was trying only to comply with federal law that says tests with such disparate impacts are not to be trusted.

She read her dissent from the bench and seemed to be accusing her conservative colleagues in the majority of using the same standard that others have criticized President Obama for seeking in appointing judges: empathy.

"Mr. Ricci and his fellow petitioners understandably attract the court's empathy," Ginsburg read. "But they had no vested right to promotion, and no person has received a promotion in preference to them."

Ginsburg's remarks seemed even more carefully chosen when reporters read the written dissent contained in the court's decision. There she had used another word: "The white firefighters who scored high on New Haven's promotional exams understandably attract this Court's sympathy."

So if Ginsburg was speaking to one side, was Justice Samuel A. Alito Jr. speaking to another, and implicitly criticizing Obama's nominee to the high court, Sonia Sotomayor? She has served on a panel of the U.S. Court of Appeals for the 2nd Circuit that endorsed a lower court's decision upholding New Haven's action.

"The dissent grants that petitioners' situation is 'unfortunate' and that they 'understandably attract this court's sympathy,' " Alito wrote in concurring with the majority opinion. "But 'sympathy' is not what petitioners have a right to demand. What they have a right to demand is evenhanded enforcement of the law -- of Title VII's prohibition against discrimination based on race. And that is what, until today's decision, has been denied them."

Walter Dellinger, the sharp-eyed Supreme Court practitioner, spotted the "essay within an opinion" from Souter in the justice's dissent from a decision that declined to recognize a constitutional right for prisoners to have DNA evidence tested.

Souter seemed to depart from the subject at hand when he said he agreed with the majority that in deciding to recognize "an individual right unsanctioned by tradition . . . the beginning of wisdom is to go slow."

It is "essential to recognize how much time society needs in order to work through a given issue before it makes sense to ask whether a law or practice on the subject is beyond the pale of reasonable choice, and subject to being struck down as violating due process," Souter wrote.

The court recognizes new rights, Souter wrote, mentioning the right to privacy and the court's decision striking laws on sodomy. But it takes time.

"We can change our own inherited views just so fast, and a person is not labeled a stick-in-the-mud for refusing to endorse a new moral claim without having some time to work through it intellectually and emotionally," Souter wrote. "The broader society needs the chance to take part in the dialectic of public and political back and forth about a new liberty claim before it makes sense to declare unsympathetic state or national laws arbitrary."

Souter never mentioned gay marriage, but Dellinger, writing in Slate, said it is "hard to avoid the conclusion" that it was one of the issues he had in mind. "His carefully nuanced message both defends the legitimacy of judicial recognition of 'non-traditional' rights and cautions against a premature quest for national judicial rules," Dellinger said.

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