Souter the Burkean Versus Scalia the Neocon

The battle over Justice Souter's legacy has begun. The orthodox conservative view is succinctly (albeit nastily) expressed by Northwestern Law Professor John McGinnis in this article in the National Law Journal. McGinnis says:

Souter will be known wholly for doing the unexpected by becoming one of the most liberal justices on the court and participating in the plurality that reaffirmed the core of Roe. He leaves no independent jurisprudential mark and not a single memorable phrase in an opinion of which he was the ack­nowledged author. He was the worst writer on the court by a considerable margin.

Putting aside the gratuitous literary evaluation, what should we make of the characterization of Souter as a liberal? I am quoted in the same National Law Journal article describing Souter as a conservative, albeit a very different sort of conservative than Justice Scalia--and for that matter, Justices Thomas, Roberts and Alito. Perhaps I can explain what I meant with an analogy to the battle now raging over the future direction of the Republican Party and conservatism more generally.

The media have tended to describe the intra-Republican/conservative fratricide as pitting purists against pragmatists. But that framing of the debate, in my view, concedes far too much ground to the hard right, the self-described true conservatives, for it is only very recently that much of what we now associate with conservatism became the orthodox conservative view: Economic libertarianism; international unilateral interventionism; and state enforcement of traditional morality. New England/Rockefeller Republicans represented an older, more moderate brand of conservatism in the literal sense: dedicated to conserving the best of the status quo, and thus cautious about, though not irresolutely opposed to, change. David Souter was and is very much part of that older tradition.

Likewise in jurisprudence, conservative true believers (like McGinnis) now talk as though originalism is and always was the only legitimate and certainly the only conservative methodology. Yet originalism as now espoused is a relatively recent creation, dating roughly to the beginning of the Reagan Administration. Before that, the epitome of judicial conservativism was the second Justice Harlan, who greatly valued precedent, supported civil rights, and dissented from what he regarded as those Warren Court decisions that went too far too fast. He was not, however, a conservative in the current sense.

Perhaps Harlan's most famous opinion was his dissent on jurisdictional grounds in Poe v. Ullman, in which he espoused the view of substantive due process that would ultimately come to be seen as the best justification for Griswold v. Connecticut, which was in turn the doctrinal springboard for Roe. Harlan thought original understanding was an important piece of constitutional interpretation but far from the key to every door. Justice Souter admired Justice Harlan and there are clear traces of Harlan in Souter's body of work. Souter respects precedent and tradition but does not fetishize either. The passage from Harlan's Poe dissent that most enrages true-believing self-described conservatives of our own era is the following:

Due process has not been reduced to any formula; its content cannot be determined by reference to any code. The best that can be said is that through the course of this Court's decisions it has represented the balance which our Nation, built upon postulates of respect for the liberty of the individual, has struck between that liberty and the demands of organized society. If the supplying of content to this Constitutional concept has of necessity been a rational process, it certainly has not been one where judges have felt free to roam where unguided speculation might take them. The balance of which I speak is the balance struck by this country, having regard to what history teaches are the traditions from which it developed as well as the traditions from which it broke. That tradition is a living thing. A decision of this Court which radically departs from it could not long survive, while a decision which builds on what has survived is likely to be sound. No formula could serve as a substitute, in this area, for judgment and restraint.

Souter's brand of conservatism, like Harlan's, resists the formulaic simplicity of Justice Scalia's notion that the rule of law is a law of rules. It is conservative in the Burkean sense rather than what we might justifiably call the neo-conservative or even reactionary approach of the current true believers. (Props to Tom Merrill who made a version of this point in his excellent 1995 speech/article "Bork v. Burke.") Harlan and Souter could recognize that sometimes the advantages of rules (predictability, fair notice, etc.) outweigh their vices (arbitrariness, unfairness, etc.) but were not doctrinaire about the point.

The effort of those on the hard right to characterize Souter (and by extension Harlan) as de facto liberals, jettisons some of what is best in the conservative tradition at just the time when the Republican Party and conservatism risk becoming a rump political movement. To be sure, the five most conservative Justices on the current Court could remain a force for another 3 or 4 Presidential terms, so conservativism has better short to medium term prospects in the courts than in the political arena. But even that calculus only works if Justice Kennedy reliably votes with the neocon/reactionary wing of the Court, which he does not invariably do. (The true believers hate Justice Kennedy even more than they hate Justice Souter.) And in the long run, the success of any jurisprudential movement is tied to the fortunes of its simpaticos in politics.

Bottom Line: David Souter did not leave the Republican Party and conservatism; they left him.

Posted by Mike Dorf