The Justice Souter Speech Every Law Student Should Read

 By Eric Segall

School is starting again, sort of, and many law students will be taking constitutional law in one form or another. At most law schools, students will begin with Marbury v. Madison, or maybe McCulloch v. Maryland, and then work their way through over 200 years or so of Supreme Court cases involving many of our country's most difficult legal, social, and political issues. It is important that these students understand how the Supreme Court explains its decisions--usually in this form: here are the facts, here is the text relevant to the case, here is the history, here is the case law, and presto here is the conclusion. 

But it is also important that students understand that the Court rarely gives a full and accurate picture of why it rules the way it does in constitutional law cases. To truly understand constitutional law, and maybe more importantly, to develop critical thinking skills, which every lawyer needs, students need to be able to see and understand what Professor Jeremy Telman calls the "ipse dixit" moment in constitutional decisions. To oversimplify Telman's fine work, the ipse dixit moment is the crucial but non-textual, non-historical, non-precedent based value judgment that controls most constitutional decisions. 

Former Supreme Court Justice David Souter, shortly after his retirement, gave a commencement speech at Harvard that provides a much more accurate firsthand account of how the justices decide constitutional law cases than the one many law professors and Court commentators provide. Souter's speech should be required reading for all law students taking their first constitutional law course. This post summarizes the most important parts of that speech in order to demonstrate that formalist accounts of constitutional law fail to capture how the Justices actually operate or even could operate.

After his introductory remarks, Souter laid out how constitutional cases are usually framed:

A claim is made in court that the government is entitled to exercise a power, or an individual is entitled to claim the benefit of a right, that is set out in the terms of some particular provision of the Constitution. The claimant quotes the provision and provides evidence of facts that are said to prove the entitlement that is claimed. The facts on their face either do or do not support the claim. If they do, the court gives judgment for the claimant; if they don’t judgment goes to the party contesting the claim. On this view, deciding constitutional cases should be a straightforward exercise of reading fairly and viewing facts objectively.

Souter than suggested that some constitutional disputes, what we might call easy cases, can be decided in this manner. He said that if one of

today’s 21 year old college graduates claimed a place on the ballot for one of the United States Senate seats open this year, the claim could be disposed of simply by showing the person’s age, quoting the constitutional provision that a Senator must be at least 30 years old, and interpreting that requirement to forbid access to the ballot to someone who could not qualify to serve if elected....But cases like this do not usually come to court.

Souter called this the "fair reading" method of deciding cases. Today we might call it textualism, and he said that for cases that actually get to court, this way of thinking about judicial decisions "has only a tenuous connection to reality."

Most constitutional law cases, according to Souter, involve text that is general and imprecise, such as the Due Process and Equal Protection Clauses, and the Fourth Amendment's prohibition on "unreasonable" searches. These

provisions cannot be applied like the requirement for 30 year-old senators; they require more elaborate reasoning to show why very general language applies in some specific cases but not in others, and over time the various examples turn into rules that the Constitution does not mention.

So how does the Court create these "rules" that the Constitution does not mention but which become the binding law for our country? Souter said that the justices have no choice but to engage in decision-making off the page (my term). They often have to balance competing constitutional values in ways that the text and history of the Constitution cannot privilege. Additionally, the justices have to make decisions about the facts, which often involve value judgments which, again, can't be gleaned by examining text, history, or even prior case law.

To demonstrate this legal realist account of constitutional law cases, Souter used the famous "Pentagon Papers" decision. The New York Times and the Washington Post wanted to publish classified information about the Vietnam War. The government claimed disclosing this information would severely harm the national interest and sought an injunction prohibiting the publication. 

The First Amendment, of course, says the government (well actually just Congress but we will leave the issue of how that applies to the President for another day), "shall pass law abridging the freedom of speech." Of course few people interpret the word "no" literally but that wasn't Souter's point. Instead, he argued in his speech that the First Amendment contains one value, freedom of expression, but that the Constitution protects other values as well, such as the President's obligation to provide for the security of the United States. Here is how Souter put it:

The explicit terms of the Constitution, in other words, can create a conflict of approved values, and the explicit terms of the Constitution do not resolve that conflict when it arises. The guarantee of the right to publish is unconditional in its terms, and in its terms the power of the government to govern is plenary. 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.

The Court refused Nixon his requested injunction but several of the justices, Souter said, went out of their way to explain that in other circumstances involving national security an injunction of speech might be appropriate. These examples included a publication that would have given the Germans advanced notice of our D-Day invasion during WWII or the publication of information that could lead to an imminent nuclear confrontation. The important point, according to Souter, is that there is no textual, historical, or formalistic method of resolving these clashes of values.

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. Choices like the ones the Justices envisioned in the Papers case make up much of what we call law.

The "choice" in what Souter called the "Papers" case was that the government did not show that the publication of the information would lead to the kind of emergency that would justify a prior restraint. In retrospect the Court was obviously right but in the moment the decision had to be informed by judgments and intuitions about what proof was necessary for the government to sustain its burden of proof and whether the evidence supported the President's claim of dire consequences. But few would doubt that the Constitution both enshrines freedom of expression and the need to protect national security as legitimate, and in this case, competing values. When constitutional values conflict, as they do in most constitutional cases, the typical stuff of "law," text, history, and precedent, simply cannot privilege or lead to one result over another. For students, recognizing the point in constitutional law decisions where law runs out and, in Professor Tellman's words the ipse dixit moment occurs, can provide excellent lessons in critical thinking.

The constitutional law canon is full of clashes of legitimate constitutional values where text, history, and prior case law simply cannot provide any kind of reasonable answer to the problem at hand. In most First Amendment cases, for example, the government asserts a non-speech interest in whatever law is at issue, and the plaintiff claims her interest in free expression trumps that interest, and the Court has no choice but to balance competing values. The Court's entire 11th Amendment jurisprudence is replete with the Court trying to balance the need for state accountability with legitimate state sovereignty interests. And most separation of powers cases require judges to balance the desire for governmental efficiency with real concerns about governmental tyranny. We want the President to win the fight against terrorism but we don't want to give him a blank check to do so because we fear the loss of civil liberties.

Just this term, the Court had to balance a state's interest in church/state separation with the asserted free exercise of religion rights of parents who claimed that, if a state gives financial assistance to private secular schools, it must provide the same assistance to religious schools. The Court sided with parents and against the state. It doesn't take a legal realist to conclude that the key factor in the case's outcome was the ideological pre-commitments of five Justices to accord free exercise rights more value than non-establishment concerns. A different Court with one different justice would have decided the case the other way but not because of disagreements over so- called legal sources but because of different values.

Souter used Brown v. Board of Education to show that some constitutional law cases are hard because facts change and old decisions have to be re-evaluated in light of new circumstances. He noted that when Plessy v. Ferguson was decided in 1896, slavery was not an old relic but a relatively recent phenomenon. To the Plessy Court, required separation of the races in railroad cars was no cause for constitutional concern. But by the time 1954 rolled around, our country was very different, and forced separation of the races in public schools was a bridge too far. What changed was not the legal principle at stake but the facts on the ground.

Whether a case is hard because of conflicting constitutional values, changed or disputed facts, or many times both, the most important takeaway is that constitutional law is about much more than reading the text, studying its history, or relying on prior cases. Souter explained this complexity this way:

The Constitution is a pantheon of values, and a lot of hard cases are hard because the Constitution gives no simple rule of decision for the cases in which one of the values is truly at odds with another. Not even its most uncompromising and unconditional language can resolve the potential tension of one provision with another, tension the Constitution’s Framers left to be resolved another day; and another day after that, for our cases can give no answers that fit all conflicts, and no resolutions immune to rethinking when the significance of old facts may have changed in the changing world. These are reasons enough to show how egregiously it misses the point to think of judges in constitutional cases as just sitting there reading constitutional phrases fairly and looking at reported facts objectively to produce their judgments.

Certainty and objectivity in constitutional law cases are illusions, and dangerous ones at that. At the heart of every constitutional law case choices must be made--choices not privileged by text, history, and precedent. There is no other way, as every law student needs to learn.