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Justice Souter speaks…

… at Harvard on May 27th, about constitutional interpretation and the role of judges.

Linda Greenhouse gives us the highlights, and here’s the whole text.

In his speech, Souter attacks what he calls the “fair reading model” of constitutional interpretation, which seems to mean something similar to Scalia’s originalism or to Roberts’ analogy of an umpire calling balls and strikes. A sample:

The fair reading model fails to account for what the Constitution actually says, and it fails just as badly to understand what judges have no choice but to do.  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 every 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.  Judges have to choose between the good things that the Constitution approves, and when they do, they have to choose, not on the basis of measurement, but of meaning.

Sounds pretty persuasive to me.  But this means we have to admit that the justices, in many cases, are unbound by the text; they are choosing “between the good things that the Constitution approves.”  Well then, so be it.   Supreme Court Justices, in underdetermined cases, are a sort of political animal, and I think it’s silly to pretend that they aren’t.

We certainly don’t pretend during the confirmation process, so why should we start once a justice is confirmed?

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