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David Souter vs. the Antonin Scalias

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By E.J. Dionne Jr.
Thursday, June 3, 2010

It should become the philosophical shot heard 'round the country. In a remarkable speech that received far too little attention, former Supreme Court justice David Souter took direct aim at the conservatives' favorite theory of judging.

Souter's verdict: It "has only a tenuous connection to reality."

At issue is "originalism," an approach to reading the Constitution whose seeming precision has given conservatives a polemical advantage over the liberals' "living Constitution" idea that appears to let judges say our founding document means whatever they want it to mean.

Justice Antonin Scalia, the court's leading orginalist, summarized his opponents' attitude toward the Constitution with four words: "You know, it morphs."

Now, thanks to Souter's commencement address at Harvard last week, Scalia's critics have fighting words of their own. Souter, who did not mention Scalia by name, underscored "how egregiously it misses the point to think of judges in constitutional cases as just sitting there reading constitutional phrases fairly and looking at reported facts objectively to produce their judgments."

The problem is not only that "constitutions have a lot of general language in them in order to be useful as constitutions," but also that the U.S. Constitution "contains values that may very well exist in tension with each other, not in harmony."

This means that "hard cases are hard because the Constitution gives no simple rule of decision for the cases in which one of the values is truly at odds with another."

Souter attacked the fatal flaw of originalism -- which he relabeled the "fair reading model" -- by suggesting that it would have led the Supreme Court in 1954 not to its Brown v. Board of Education decision overturning legal segregation but to an affirmation of the 1896 Plessy v. Ferguson ruling upholding "separate but equal" public facilities.

"For those whose exclusive norm of constitutional judging is merely fair reading of language applied to facts objectively viewed, Brown must either be flat-out wrong or a very mystifying decision," Souter said.

"The language of the Constitution's guarantee of equal protection of the laws did not change between 1896 and 1954, and it would be very hard to say that the obvious facts on which Plessy was based had changed," Souter argued. "Actually, the best clue to the difference between the cases is the dates they were decided, which I think lead to the explanation for their divergent results."

Yes, the Supreme Court changed because the nation's understanding of race changed.

Souter notes that "the members of the court in the Plessy case remembered the day when human slavery was the law in much of the land. To that generation, the formal equality of an identical railroad car meant enormous progress. But the generation in power in 1954 looked at enforced separation without the revolting background of slavery. . . . "


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