Thursday, June 10, 2010

Souter's Harvard Balancing Act

Most of the discussion I have seen of retired Justice David Souter's Harvard commencement speech--both laudatory and critical--has focused on the primary distinction Souter drew at the level of jurisprudential philosophy between what he called the "fair reading" model (by which he more or less means textualism or original-public-meaning originalism) and his own view (which we might associate with what is sometimes called "living Constitutionalism").  Here I want to add a few thoughts that operate at the level of doctrine.  I'd like to suggest that Souter's distinctive view of fundamental rights has, almost without anybody noticing, become the law.

In his speech, Souter ascribed the need for judges going beyond the four corners of the text to two factors: 1) the generality of much of the Constitution's key phrases; and 2) the fact that the Constitution serves conflicting values. He laid greater emphasis on the second point, and I shall focus there as well.  My claim is that this notion of the judge as weighing conflicting values in the law played an important role in Souter's work on the Court.

The constitutional law of most other countries and international human rights law is shot through with balancing and proportionality tests.  These bodies of law reflect a point that Isaiah Berlin and others have made over and over again: In a complex world, people can and do hold conflicting values.  Circumstances arise in which it is impossible to fully honor all of our fundamental values--and if a society has enshrined those values in a constitution, this will mean trading off one constitutional provision against another.

But generally not, as an official matter, in the United States.  Here we have tended to suppress conflict.  Our constitutional tests tend to categorize cases in such a way that either the rights claimant just about automatically loses (think of rational basis cases) or just about automatically wins (think of strict scrutiny cases).  Occasional efforts to develop intermediate categories (such as intermediate scrutiny) have not fared well, as American judges--obsessed by the fear of being labeled activist--do not like exercising judgment in ways that are too obvious.

It didn't have to be this way.  Over forty years ago, Ronald Dworkin potentially pointed the way towards balancing by positing that legal principles (what are sometimes called "standards") do not merely operate in an on/off fashion but often have a dimension of "weight," such that contrasting legal principles can be in play, but one must prevail over another in some set of circumstances.  Yet Dworkin's work did not ultimately lead to overt balancing because he also built much of his jurisprudential view on the idea that "rights are trumps," i.e., that rights operate in an on/off fashion: In a conflict between a right (a matter of principle) and a mere "policy," the trumps view means that the right always prevails.  The "trumps" idea fits in very well with the on/off approach.

Justice Souter mostly accepted the Court's rights doctrines but he placed a distinctive pro-balancing gloss on them.  The point is perhaps clearest in his concurrence in the judgment in Washington v. Glucksberg.  Souter joined in rejecting the claimed constitutional right to physician-assisted suicide but wrote separately to say that he thought that in different circumstances such a rights claim might prevail.  Although using the language of strict scrutiny applying to infringements on fundamental rights, he sought to reorient it in the direction in which he saw his role model--the second Justice Harlan--as pointing it: towards a balancing test, as exemplified by Harlan's dissent in Poe v. Ullman.  Souter had said much the same thing during his confirmation hearing.

Justice Souter was on his own in his Glucksberg concurrence and he did not consistently write separately to expound his idiosyncratic view of substantive due process rights.  Yet somehow, without anyone seeming to notice, his view more or less became the law.  Although bar exams and hornbooks are still written as though the recognition of a fundamental right triggers strict scrutiny, the doctrine has moved much closer to the sort of open-ended balancing Justice Souter favored, most clearly in Lawrence v. Texas, where Justice Kennedy's opinion never says what level of scrutiny the challenged law is under.  To those accustomed to the conventional categories, this is frustrating.  To Justice Souter, it must have seemed perfectly natural.

I'll conclude by noting that I'm not sure exactly where Justice Souter's preference for balancing comes from, but that it fits naturally with the rest of his anti-formalist jurisprudence.  After all, his chief foil--and the unnamed ostensibly hypothetical interlocutor in his Harvard speech--has been Justice Scalia.  And Scalia hates balancing above all else.  I'm not saying that's a sufficient ground for Souter to love it.  I am saying that the confluence is unlikely to be an accident.


Sam Rickless said...

Thanks again for a great post, Michael.

Consider the following propositions:

(P1) Rights are not absolute.
(P2) Judicial decisions concerning rights should result from a balancing of conflicting values.

As I read it, Souter's speech suggests that P2 follows from P1. But if this is what Souter is saying, then I disagree with him (and I don't think that the Supremes have followed his lead here either). From the fact that rights are not absolute, what follows is that there are circumstances in which it is permissible to infringe the right. But it doesn't follow that the best way to decide whether it is permissible to infringe this or that right is to weigh the value of the interest protected by that right against the value of other interests. This kind of balancing is a form of pragmatic consequentialist adjudication, just the sort of approach associated with Justice Holmes (in whose footsteps Souter claims to be following). But the structure of strict, intermediate, and rational basis scrutiny does not fit this way of applying the text of the Constitution. Strict scrutiny says that the relevant right is very stringent, and only the most pressing of reasons could justify its infringement. Rational basis says that the relevant right is not particularly stringent, and only very poor reasons would be insufficient to justify infringing it. It is easy to think of the levels of scrutiny approach as involving a kind of balancing of conflicting values. But the kind of balancing at issue here need not be consequentialist. Like Holmes before him, it is here that Souter makes an unjustified slide: from non-consequentialist balancing (if you will) to consequentialist balancing.

I don't think that the Court engaged in open-ended (consequentialist) balancing in Lawrence. To me, the decision is awkward, and it is easy to understand why. As you say, Kennedy declined to state the level of scrutiny appropriate to the case. Scalia pointed out, reasonably, that Kennedy (to be consistent with his prior decisions and judicial philosophy) should have applied rational basis, in which case he should have found that the anti-sodomy statute was constitutional. Scalia therefore inferred (reasonably) that Kennedy was being inconsistent, and was really applying strict scrutiny without saying so. Indeed, I think this is the best reading of the decision. If I am right about this, then Kennedy did not engage in Holmes-Souter balancing.

I will add that I am a little saddened that the brightest and most influential liberals think that the best way to counter Scalia's preference for absoluteness and bright line rules is to adopt a form of Holmesian pragmatism/consequentialism. The fact that Scalia is a textualist non-consequentialist does not mean that we liberals should all run away from non-consequentialism. What we need to do is articulate a forceful version of *non-textualist* non-consequentialism. It is not by consequentialist balancing that the Pentagon Papers case and Brown were decided. Both cases were decided on principle, the first because the right to free speech is very stringent (and thus triggers strict scrutiny), the second because the right to equal educational opportunity is also stringent.

Michael C. Dorf said...

Thanks for this comment, Sam. I agree that P2 does not follow from P1. Note that years before Justice Souter's efforts to move back towards balancing in liberty cases, in equal protection cases, both Justices Thurgood Marshall and John Paul Stevens objected to separate tiers of scrutiny, arguing for something like balancing.

Note for the record, that I'm not here taking a view on the desirability of balancing. I'm just reporting on Justice Souter's move.

Sam Rickless said...

Fair enough. I completely agree that Marshall and Stevens also advocated balancing. This is precisely what worries me, because I don't think that pragmatic balancing is the answer to Scalia. It is, in fact, the abandonment of the very principles that made landmark decisions such as Brown and Roe possible.

Charles T. Wolverton said...

While it is clear that P2 does not follow from P1, it is equally clear that J Souter did not state P2. A trivial observation is that no variant on "balance" appears in the speech. A more substantive observation is that he says several times that values embodied in the Constitution may "conflict", and that in such cases a "choice and its explanation" are required. I see that as unassailable logic.

"... should have applied rational basis, in which case he should have found that the ... statute was constitutional."

This is a quite surprising statement. In one reading, it suggests that independent of the statute in question, adopting the rational basis standard is tantamount to a ruling of constitutionality, which - notwithstanding RB's being widely recognized as a low bar - is manifestly wrong. And if read re the specific statute at question in Lawrence, in the absence of a supporting argument, the statement is a no-op.

Also, I wonder if "Holmesian pragmatism/consequentialism" is an internally consistent concatenation. J Posner is a self-proclaimed legal pragmatist, and I understand him to be a fan of J Holmes. Yet on pp. 59-60 of LDP he writes (item 4):

"And so, despite the emphasis on consequences, legal pragmatism is not a form of consequentialism ..."

I don't care for such labels, including "liberal", and typically ignore them, but in this instance "consequentialism" seems key to Prof Rickless's point, and "liberal" is probably intended to include people like me. So, I wonder if I'm missing some subtlety.

Sam Rickless said...


1. Although Souter does not use the term "balancing", he does say this:

"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."

Souter does not tell us how to choose between two *goods*. And it may be that he prefers a non-consequentialist method of choosing. But it seems to me reasonable to assume that, in the absence of anything stated to the contrary, the only way to choose between "goods" is to weigh them, i.e., balance them.

2. I do not think that the RB test, whenever applied, yields a judgment of constitutionality. My view is that the facts of the Lawrence case, when combined with the RB test, entail a judgment of constitutionality. After all, as you say, the RB test is a low bar.

3. Posner's main reason for thinking that pragmatism is not consequentialist is that he thinks of consequentialism as act-consequentialism rather than rule-consequentialism. Once you allow for rule-consequentialism, the differences between Posner's version of pragmatism and consequentialism are, for most purposes, relatively insignificant.

Charles T. Wolverton said...

Sam -

Thanks for the reply.

Re "balancing", having been educated and worked in an area of applied math, I tend to chafe at the frequent imprecise use of language in areas I view as being "technical" in the broad sense - specifically, law and the areas of philosophy of interest to me. So, although one can infer whatever they like from J Souter's statements, I can't see using those inferences as premises in an argument structured as if it were employing formal logic.

Re Lawrence, OK. Because J Kennedy's opinion seemed shaky, at the time I preferred a more general version of J O'Connor's EP-based concurrence since homosexuality seemed to meet the reqs for suspect classification, "immutability" arguably being the weakest link. Today, the politically impotent requirement might also arguably be weak.

Re J Posner, that's the kind of input I hoped for. It seems a matter of little "consequence" whether he is or isn't a consequentialist, but your response motivated me to read up on the act-rule distinction.

Anuj Desai said...

Just a quick note on this post and the subsequent comments. I may be misreading this, and if so, correct me. But, I think it's incorrect to treat Justice Harlan's *Poe* dissent as just consequentialism or pragmatism a la Holmes (or Posner). Nor do I think it is just balancing in the way the Canadian Supreme Court might decide something or a German constitutionalist would use "proportionality." It is of course "living Constitutionalism" at some level, especially if contrasted with Justices Scalia and Thomas's view about original meaning, but Justice Harlan’s approach to substantive due process was very much rooted in both rationalism and *tradition* (and implicitly in a Burkean, common-law way of thinking about legal questions).

In particular, Harlan’s (and Souter’s) attitude to history and tradition is extremely different from, say, Posner or Holmes. Souter’s concurrence in *Glucksberg* makes clear that the “scrutiny of a legislative resolution (perhaps unconscious) of clashing principles” has “to be weighed within the history of our values as a people.” Another place to see how Justice Souter was not just pure consequentialism is his valedictory dissent in *District Attorney's Office for the Third Judicial District v. Osborne* (in which he leaves open the question of whether substantive due process grants a right to biological evidence for DNA testing). In *Osborne*, he talks quite explicitly about what matters in the substantive due process “balancing”: "Tradition is of course one serious consideration in judging whether a challenged rule or practice, or the failure to provide a new one, should be seen as violating the guarantee of substantive due process as being arbitrary, or as falling wholly outside the realm of reasonable governmental action. See Poe v. Ullman, 367 U. S. 497, 542 (1961) (Harlan, J., dissenting). We recognize the value and lessons of continuity with the past, but as Justice Harlan pointed out, society finds reasons to modify some of its traditional practices, ibid., and the accumulation of new empirical knowledge can turn yesterday's reasonable range of the government's options into a due process anomaly over time."

Compare that with Holmes’ attitude to historical tradition, which he viewed as a “dragon” that he wanted to “kill”: “The rational study of law is still to a large extent the study of history. History must be a part of the study, because without it we cannot know the precise scope of rules which it is our business to know. It is a part of the rational study, because it is the first step toward an enlightened scepticism, that is, towards a deliberate reconsideration of the worth of those rules. When you get the dragon out of his cave on to the plain and in the daylight, you can count his teeth and claws, and see just what is his strength. But to get him out is only the first step. The next is either to kill him, or to tame him and make him a useful animal.”

In addition, I’ll just add that while Justice Souter may be among our "brightest and most influential" voices on constitutional jurisprudence, I don’t think it’s accurate to call him a “liberal” (and that's certainly one thing no one ever called Harlan!). [Harlan, by the way, dissented in the Pentagon Papers case that Souter discusses in the Harvard speech.] Souter was, lest we forget, a Republican – a New England Republican to be sure, and I suppose they’re “liberal” by today’s standards, but let’s just say I suspect he voted for Bush 41 over Dukakis in 1988.

Michael C. Dorf said...

I read Anuj to be commenting on the comments by Sam and Charles, rather than my original post or comment. I agree both that Souter is not a liberal by traditional standards. (Nobody on the current Supreme Court really is.) I also agree that his version of balancing is not the same as that of European jurists. Justice Breyer has sometimes come closer, although even he, working in the American common law tradition, will apply balancing in a distinctively American fashion. My intention was to distinguish all balancing from the supposedly non-balancing approach advocated by neo-formalists. It is also worth noting that even among Euro-style balancers, balancing does not simply mean all-things-considered consequentialism. (Former President of the Israeli Supreme Court) Aharon Barak's book on proportionality (soon to be available in English) nicely illustrates that point. The core of the argument is set forth by Barak in a 2007 U Toronto L J article.

Anuj Desai said...

That's right, Mike. I suppose the only thing I was saying re: the post itself was an implicit suggestion as to the possible origin of "Justice Souter's preference for balancing." In addition to fitting "naturally with the rest of his anti-formalist jurisprudence," I'd suggest it derives in part from a Burkean respect for the past - and, in particular, the common law. An approach inspired by Harlan's *Poe* dissent fits too with what used to be called Rockefeller Republican values.

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