Linda Greenhouse notes in today’s New Times Opinonator Blog, some of the interesting aspects of Justice Souter’s perspectives, as presented both in his writings and his recent graduation address at Harvard.
Here’s a quote from the piece citing his address:
[Souter’s] stance was modest — “Over the course of 19 years on the Supreme Court, I learned some lessons about the Constitution of the United States,” he began — but the prose was muscular, in contrast to the writing style in many of his opinions. The “notion that all of constitutional law lies there in the Constitution waiting for a judge to read it fairly” is not only “simplistic,” he said; it “diminishes us” by failing to acknowledge that the Constitution is not just a set of aphorisms for the country to live by but a “pantheon of values” inevitably in tension with one another. The Supreme Court may serve no higher function than to help society resolve the “conflict between the good and the good,” he suggested:
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.
Here’s another great quote:
Justice Souter said he well understood, and indeed had shared, that “longing for a world without ambiguity, and for the stability of something unchanging in human institutions.” But he said he had come to accept and even embrace the “indeterminate world” in which a judge’s duty was to respect the words of the Constitution’s framers “by facing facts, and by seeking to understand their meaning for the living.”
Greenhouse goes on to describe Souter’s analysis of the movement of the Supreme Court from establishing separate but equal treatment of African-Americans in the wake of the Civil War, to the striking down of segregation sixty years later as a response to the change in the values of the country over time, not in any change in facts of the case.
This process also describes good religious thinking, not just good legal thinking. Religious people respond to original texts in the hope of learning from them, and bringing forward helpful values in our times.
Judaism goes so far as to formalize the kind of evolution of perspective that Justice Souter outlines. The history of textual interpretation, analysis, and application of conclusions from those texts that Jews have used since before the destruction of the Second Temple in Jerusalem in 70 CE constantly engages in a give and take with our source text - attempting to incorporate our lives with a sense of meaning by following that which has an ancient source on the one hand, and on the other, trying to live by core principles as they continue to evolve in response, and sometimes in opposition to that text.
Justice Souter reminds us, as helpful religious and legal thinking often does, that human society requires coming up with answers to complicated questions that cannot be solved with the simplistic application of black and white principles.