Monday, May 04, 2009

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

37 comments:

Jamison Colburn said...

Justice Stevens is often heard to make roughly the same protest (about himself). I wonder whether a President should take the temporal scale of SCOTUS nominees into their calculus in a different way. Why not think more in terms of inter-temporal issues like constitutional property? Some liberal leanings are for and some against constitutional property and the same goes for conservatives. So it tends to cut across party-line patterns, forcing judges to engage in more reasoned elaboration (one hopes) in their judgments. I'm not sure how President Obama would look for his nominee by sorting them with this concept, but it could be others, too.

Sobek said...

"...as pitting purists against pragmatists."That is not just the media framing the debate. The conservatives I read (both pragmatists and purists) describe it in the same terms. For example, "I know McCain sucks because of A, B, C and D, but he's more likely to win in the generals."

"...dedicated to conserving the best of the status quo, and thus cautious about, though not irresolutely opposed to, change."You misrepresent modern conservatives by assuming away the question of what constitutes "the best of the status quo."

As to whether Souter is a liberal, let me ask you this: if you had to argue any issue that can reasonably be split along a liberal/conservative axis, and you wanted a liberal outcome, and you only got to argue before one Supreme Court Justice, would you pick Souter, or Scalia? Souter or Roberts? Souter's voting pattern is more than enough to resolve the issue: a man who consistently votes with Ginsburg and Breyer on ideologically-contentious issues is a liberal.

Not that any more evidence is necessary, but conservative justices traditionally wait until a conservative is in the White House before retiring. They do not wait through eight years of a Republican administration until a Democrat gets elected.

As for Justice Stevens (in response to Jamison), I would never describe him as conservative or liberal. He is a Stevens-ist.

Michael C. Dorf said...

Sobek: I don't really disagree with you that Souter is clearly on the liberal side of the currently understood liberal/conservative divide. My larger point is that these labels themselves have morphed. Today's liberals are considerably less liberal (in important ways) than William Brennan and Thurgood Marshall were, while today's conservatives reflect some very different values from those reflected by judicial conservatives like Harlan and Felix Frankfurter in their day. (I make the point about liberals fully aware that this is not universally true: e.g., the current liberals are much more sympathetic to gay rights than were the Justices of the 1960s, when the issue wasn't really on the radar screen of national legal elites.)

Sobek said...

"My larger point is that these labels themselves have morphed."I agree with you. After all, there was a time when a "liberal" would not support thug regimes like Hugo Chavez'.

My response is that while the word "conservative" meant something different forty years ago, Souter's legacy is being discussed now. If you acknowledge that the word has changed meaning, then use the meaning most likely to be comprehensible to your present audience. It makes little sense to argue "Souter is a conservative" by explaining that you are using a completely outmoded definition.

egarber said...

There's sort of a weird irony here: in order to advocate a static constitution (a relatively recent movement), it has been necessary to make labels "living and breathing."

Sobek said...

"...it has been necessary to make labels 'living and breathing.'"Not really. One can advocate original intent regardless of what label is used to describe the philosophy.

In addition, one can defend original intent while recognizing that labels change in meaning with the passage of time. When construing contracts, Courts are always careful to ask what the parties intended at the time of contracting - this basic doctrine recognizes that meanings can shift after the fact. And Courts look to the the parties' intent at the time of contracting to avoid forcing upon them an agreement they never intended, or to deny or restrict their rights beyond the scope of mutual agreement.

The same is true of the social contract. The very existence of government necessarily restricts freedom. The Framers were therefore careful to restrict just how much freedom they were willing to give up. Expansive interpretations of federal power through "living and breathing" constructions violate one of the most basic premises of construing written instruments, and do so at the expense of individual liberty.

A judiciary that is fettered only by its own imagination (or a legislature or executive that over-reach their own power) can, therefore, take away rights the citizens never intended to yield. It is tyranny, plain and simple.

egarber said...

I don't advocate a "living and breathing" constitution detached from its history. I support a form of original intent -- in the sense that we should assess history to determine the founding *principles* in the constitution's language. But unlike an originalist who favors viewing everything through the prism of strict construction, in my view there are principles set forth which are indeed broad by design.

As you'll recall, that's why I firmly believe the constitution protects basic privacy: the ninth amendment (in its original sense) was meant as a warning to future generations *not* to strictly define individual rights. In this way, reading due process widely is a form of originalism; we err on the side of the individual when core liberties are implicated (ensuring we don't relinquish rights).

"Tyranny" to the framers largely meant legislative over-reach -- hence broad terms in the bill of rights (liberty, due process, etc.). And via Federalist 78 (and other sources), it's clear that the courts were intended as a shield against that potential abuse.

Federal and state legislatures certainly have broad powers subject to political control(over commerce, for instance), but at the same time, the courts can't allow that authority to over-run intimate liberties.

egarber said...

A corollary to Mike's observation is that modern conservatives on the bench have engaged in fairly extensive activism, at least by one measure: thwarting the "will of the people. "

From a Media Matters post:

But a 2005 study by Yale University law professor Paul Gewirtz and Yale Law School graduate Chad Golder showed that among Supreme Court justices at that time, those most frequently labeled "conservative" were among the most frequent practitioners of at least one brand of judicial activism -- the tendency to strike down statutes passed by Congress. Those most frequently labeled "liberal" were the least likely to strike down statutes passed by Congress.

Sobek said...

"...in my view there are principles set forth which are indeed broad by design."And I agree with you to an extent (for example, the word "cruel" is necessarily subjective). But the liberal justices go far beyond that. They don't take an expansive reading of the "privacy" clause, they invent it from whole cloth.

"'Tyranny' to the framers largely meant legislative over-reach..."Tyranny can come from nine people as easily (or more easily) as from several hundred. And it is far more dangerous coming from unelected judges who have no sense of responsibility to their employers.

Regarding the study cited at Media Matters, I'm skeptical that it uses a rational metric. Upholding the will of the people does not mean giving Congress carte blanche to, for example, give the District of Columbia a voting representative. If, hypothetically, unconstitutional legislation is proposed more frequently by liberals than by conservatives, it will skew the results at the Supreme Court when the conservatives vote to strike down the statutes.

egarber said...

But the liberal justices go far beyond that. They don't take an expansive reading of the "privacy" clause, they invent it from whole cloth.But the Ninth Amendment specifically tells us that there are whole, inherent rights beyond the enumerated clauses. At the very least, Mike's approach is in play -- i.e., the Ninth tells us that unenumerated rights emanate from existing clauses, via a broad reading of them.

I know we've discussed this in the past, so I'll only say that I think those UN-enumerated rights have equal standing with those specifically listed. And whether you take a more open approach (which I tend to favor), or Mike's more limited reading, privacy (imo) clearly falls within that zone of liberty.

Or put another way, I think the Ninth Amendment tells us that, hard as it may be, judges do have to form a sort of common-law approach for protecting intimidate personal rights. Worst case -- we err too much with the individual, rather than government authority. That in itself is a check on tyranny.

egarber said...

judges do have to form a sort of common-law approach for protecting intimidate personal rights.

man, sloppy. I mean "intimate"...

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Justice Stevens is often heard to make roughly the same protest (about himself). I wonder whether a President should take the temporal scale of SCOTUS nominees into their calculus in a different way. Why not think more in terms of inter-temporal issues like constitutional property?

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