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.