A day after announcing his retirement, Justice David Souter hinted at the approach to jurisprudence he might want to see in his replacement. Souter gamely showed up to an Oxford University alumni luncheon at the Willard Hotel on a Saturday, along with Justice Stephen Breyer. Harvard Law professor (and former Souter clerk) Noah Feldman moderated the talk.
Here is Souter advocating what can be described as a philosophy of many philosophies. Feldman has just asked whether judges should have philosophies (Souter says it can't be helped) and whether the public should know what they are:
"We can't have a single philosophy. The most dangerous thing in the
world is to have a judicial philosophy. And the reason is there's no
one philosophical system, at least in my experience, for the
interpretation of statutes--and God knows, for the American
Constitution--that is going to be able to work regardless of all
circumstances."
Souter, a Bush 41 appointee whose middle-to-left leaning jurisprudence
ultimately disappointed many conservatives, went on to chide those with
absolutist views:
"Take the recently popular view (in my judgment a legitimate view
subject to limitations) that the Constitution must be read with some
reference to original meaning. As long as you don't engage in crude
psychological fallacies about what you're getting at by original
meaning, I think there is enormous value in that philosophy. But one
has to be willing to admit there are circumstances, there are
questions, for which there are simply no materials that would shed any
light on original understanding. And if you committed your entire sense
of legitimacy to the notion that the answer has got to come from this
original understanding ... you will find some way to put (that
philosophy) into practice, whether you have legitimate premises for it
or not."
Should text, original meaning and judicial precedent fail to yield a
clear answer to a case, Souter frequently turns to good old common
sense:
"If all else fails, as it frequently does, ask a question about what
might be called a shared sense of reasonableness. Perhaps that's the
ultimate philosophy. We have a political and cultural context--what do
the American people think is reasonable, not me necessarily, but what
is the shared sense of reasonableness?"
After the talk, Souter told me he "probably" would have retired had John McCain been elected.
"Probably so. ... I'm going to be seventy soon. I've watched other
justices wait until their eighties to retire, and by that time they
have nothing left to retire to. I didn't want that to be me."
It's well known that Souter prefers life in rural New Hampshire and has
an abiding dislike for D.C. After telling another questioner that
there's no good hiking south of Massachusetts, he described a dream
he's had every day since deciding to retire: He is standing atop New
Hampshire's highest peak, above the treeline, looking down a path that
winds away into the distance.
good riddance to an abortion-loving jerk.
constructive, Lurker. I thought this was actually really insightful. He's getting at a reason that originalism has always seemed incomprehensible to me: new circumstances arise for which our framers have left us no clues. Also, how do you strictly interpret something like the IXth amendment, which basically says "do not read the rights listed here as exhaustive." It's nice to see such an eloquent statement of the art of the judiciary.
"If all else fails, as it frequently does, ask a question about what might be called a shared sense of reasonableness."
Well, that certainly explains everything. All forms of interpretation "frequently" fail, so it's obvious that a hermit from New Hampshire should decide what's reasonable for the American people.
Of course, Justice Souter immediately disclaimed that he decided what the American people thought. So how did he determine what the correct "political and cultural context" was when he voted on cases before him? By polling? Focus groups? Extensive travel? Listening tours? Consultation with elected representatives?
All one has to do is actually read Souter's few written opinions to realize that he had little interest in a case unless he could apply his personal version of "reasonableness" to the decision. So much of the laudatory press he is now receiving is either based upon his behavior at oral argument or political agreement with his ends.
Most of us can't wait for him to crawl back to his Grandaddy's old farmhouse and his favorite pastime of “forest walks” in the dark.
If you can't determine that the Constitution actually speaks to a certain topic, then shouldn't you defer to the other branches of government?
Perhaps "many" cannot wait for Justice Souter to crawl back to his Granddaddy's old farmhouse, but it is not immediately clear that "most" do so. As for a requirement to define context from the list of direct interaction, no doubt "interfacing" with the country in some way is goodness. Still, there is a place for what one might call "gedankenlaw" that yes, may be derided as coming from the ether, or if you are more vehemently opposed to the concept, from deep within the colon of the thinker. Not all great advances in science come from practical experiments alone, I see no reason for Constitutional law to be significantly different. I do not want to see a philosophically homogenous SCOTUS and believe it should have a "thinker" or two in addition to the hardnosed.
Having _everyone_ slavishly/zealously on the same page is not a good thing. It is in the same vein of absolute power corrupting absolutely.
Now, is/was Justice Souter a good Justice or a bad Justice? Frankly I have no clue and individual intuition aside, we will not really know until his term is more in the realm of history than present, but I am not prepared to dismiss him as a hermit from New Hampshire.
"Originalists" sholud recall that the ORIGINAL intent of the 1787 convention was to fine tune the Articles of Confederation and to make a nation safe for slavery. Because they went crazy and created a centralized government, the new nation survived the four score years needed to resolve the slavery issue. SCOTUS may look like a "continuous constitutional convention" but it is still the best mechanism for the accumulation of common law justice.