Souter's Speech

Something to read through today: Ex-Justice David Souter's recent speech at Harvard about his approach to the Constitution.

David Souter on the Constitution

If you have hour to kill, here's a great interview with the ex-Supreme Court Justice.

Stare Decisis, Judicial Conservatism, and David Souter

The New Republic argues that David Souter's adherence to precedence has made him the only true conservative, as opposed to a movement conservative, on the Supreme Court over the past few years:

Souter's departure offers a timely reminder that when it comes to the courts, we need to be careful about our terms. Though Souter's decisions were welcomed by ideological and partisan liberals, they were judicially conservative decisions. In fact, his were among the only consistently conservative decisions the court has known for the last two decades.

The reason is that there is a difference between an ideological or movement conservative and a judicial conservative. Judicial conservatives generally have great respect for the law, and for legal decisions that have been made. This is the essence of what is called stare decisis--let the decision stand. Upholding precedent staunches the forces of change--and typically, that generates conservative results. But when the precedent you are upholding is precedent set by the Warren Court, holding back the forces of change means enforcing liberal decisions against radical demands for change from movement conservatives.

From 1953, when Earl Warren joined the Supreme Court, until well into the 1970s, the Supreme Court issued one liberal opinion after another--opinions that enhanced protections for criminal suspects, took the government out of American bedrooms, demanded an end to segregation, insisted on equal protection for women, and identified and enforced a woman's right to choose abortion.

Asking the Supreme Court to overrule these decisions is anything but judicially conservative--it's downright radical. And when the judicially conservative David Souter was asked to toe the movement line, he insisted on a very conservative response: No. He alone stood for judicially conservative values, insisting on maintaining and supporting the Court's own doctrine and decisions. He stood by stare decisis.

Its a good read, and a useful way to evaluate the various labels placed on both ideologies and approaches to the Constitution.

It puts an interesting spin on the decisions of Justices Scalia and Thomas for example:

...the justices we think of as the genuine conservatives, led most prominently by John Roberts, Samuel Alito, and Clarence Thomas, have made no secret of their eagerness to dump, trash, ignore, overrule, overturn, bury and immolate volume after volume of the Supreme Court's liberal precedents.

Thomas--a hero for the conservative movement--is more than delighted to revisit and reject precedent where he finds it out of step with a proper reading of the constitution. No less an authority than Antonin Scalia has said of his colleague that Thomas "doesn't believe in stare decisis, period. If a constitutional line of authority is wrong, he would say, 'Let's get it right.'"

Here's where movement conservatism -- which we might define as political support for a set of beliefs that we label conservative -- butts up against (and even contradicts) classical conservatism which is defines as a system of government which respects traditions and the slow organic way that law develops over history. To seek to overthrow tradition, precedence, is to behave radically, not conservatively. Society gets law right gradually over time, not at the single stroke of a pen.

This argument is sure to go nowhere with contemporary conservatives of course.

Souter's Retirement

As has been noted by many commentators, David Souter never liked Washington and its politically charged atmosphere so it is not a surprised that he opted to retire when there seemed to be a reasonable chance that he would be replaced with a like minded individual.

This will be a dominant news item for the rest of the summer. Here are a few links worth perusing, though many more are out there.

- Obama Announces the Retirement.
- Possible Replacements.
- Conservatives Target Select Possible Nominees for Opposition.
- Washington Preps for Battle.
- Wikipedia: David Souter.
- Oyez Project: David Souter.

Souter is generally used a textbook example of the importance of, or problems with depending on your point of view, service during good behavior because it allows the judiciary the opportunity to exercise independence. In the case of Souter, this meant not being the lock step conservative he was sold as being. He has since drifted to the left, as did Earl Warren and William Brennan before him.

Given that he has a liberal voting record, it is not expected that his retirement will change anything on the court.

Some wonder however whether his retirement, since it will allow for Republicans to mount an offensive against his replacement, might help focus the party and help it regain momentum. Its a debatable point. Since the retirement rumor mill also includes 89 year old Stevens and cancer survivor Ginsburg, they might have plenty opportunities to get it right.