The Best Justice is an Ex-Justice

Abigail & the Box 14

Ex-Justices of the Supreme Court are interesting creatures. Semi-unbound by the unspoken oath of verbal celibacy that sitting justices (for the most part) practice, they will often take on subjects they never felt free to discuss while on the Court.

Sandra Day O’Connor is an example, who left at the peak of her intellectual powers in large part to care for her Alzheimer-affected husband (who has since died). She has been especially active on behalf of the generally understaffed and underpaid judiciary at all levels, but she also has made clear she regrets her pivotal vote in Bush v. Gore.

Our most recent resignee, David Souter (replaced by Sonia Sotomayor), has given his post-resignation maiden address, and it’s a doozy. Delivered as the May 27 commencement speech at Harvard University, Souter took on Antonin Scalia and other “Originalists,” rebutting their position that all modern Constitutional conflicts may be resolved from reading within the four corners of that document and working from the framers’ original intent. (What other Constitutional scholars have designated “originalism,” Souter calls the “fair reading model.”)

Souter provides two examples, the first being very dear to my heart — the so-called “Pentagon Papers” case involving The NY Times and The Washington Post. Dear to me because, 1) I was in law school at the time, so intensely interested in this crucial case; 2) it pertained to the Vietnam War, which I only recently had experienced first hand; and 3) when I graduated and joined a law firm, my eventual mentor had been the U.S. Attorney who prosecuted the case on behalf of the government.

He describes the intense and crucial dialog before the court between Erwin Griswold for the U.S. Government and Justice Hugo Black, the one Justice who felt that when the Constitution said no law could be enacted restricting freedom of speech or press, it literally meant no law. Souter describes the conflict between what the government wanted and how Black concluded the Constitution (more properly, the First Amendment) forbade it. He describes the scene as if it were high drama, which of course it was.

Even the First Amendment, then, expressing the value of speech and publication in the terms of a right as paramount as any fundamental right can be, does not quite get to the point of an absolute guarantee. It fails because the Constitution has to be read as a whole, and when it is, other values crop up in potential conflict with an unfettered right to publish, the value of security for the nation and the value of the president’s authority in matters foreign and military. 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.

Souter’s second example is Brown v. Board of Education, a Warren Court decision that overturned the segregation-upholding Plessy v. Ferguson, and the decision many conservatives point to as the ultimate in judicial activism. As Souter puts it,

For those whose exclusive norm for constitutional judging is merely fair reading of language applied to facts objectively viewed, Brown must either be flat-out wrong or a very mystifying decision. Those who look to that model are not likely to think that a federal court back in 1896 should have declared legally mandated racial segregation unconstitutional. But if Plessy was not wrong, how is it that Brown came out so differently?

Souter then goes on to say the critical difference between the cases is that Plessy was decided in 1896, whereas Brown was in 1954. “As a consequence, the judges of 1954 found a meaning in segregating the races by law that the majority of their predecessors in 1896 did not see. … The judges who understood the meaning that was apparent in 1954 would have violated their oaths to uphold the Constitution if they had not held the segregation mandate unconstitutional.”

Let me, like the lawyer that I am, sum up the case I’ve tried to present this afternoon. 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.


I have to believe that something deeper is involved, and that behind most dreams of a simpler Constitution there lies a basic human hunger for the certainty and control that the fair reading model seems to promise. And who has not felt that same hunger? Is there any one of us who has not lived through moments, or years, of longing for a world without ambiguity, and for the stability of something unchangeable in human institutions? I don’t forget my own longings for certainty, which heartily resisted the pronouncement of Justice Holmes, that certainty generally is illusion and repose is not our destiny.

To read another, even better analysis of Souter’s meaning and intent, read E.J. Dionne’s Washington Post Op-Ed, “David Souter vs. the Antonin Scalias.”

Souter, the introspective, mousy little man from New Hampshire, may have delivered an address that will turn out to be one of the most important by any jurist for decades.


Consciousness Department

I have been slowly reading Christof Koch’s The Quest for Consciousness, a fascinating and very informative investigation into the nature and seat of consciousness, primarily using scientific studies of vision as the vehicle to arrive at its conclusions. The book is not for the faint-of-heart, and sometimes is a heavy slog with a great deal of neurobiological jargon and technical descriptions. Nevertheless — and I’m approximately half-way through the book — the conclusions and analysis are already most intriguing for me, given my predilection for a mate
rialistic basis for volition and action, denial of the “soul,” and doubt of the existence of anything like “free will.” Consider the following three paragraphs from a section entitled “Your Zombie Acts Faster Than You See,” in Chapter 12, “What You Can Do Without Being Conscious”:

[Experimenters] estimated the delay between a rapid manual response and subjective awareness. Three dowels were placed in front of an observer with her hand resting on the table. Suddenly, the central dowel was lit from below and she had to reach out and grasp it as rapidly as she could. On occasion, the light was shifted to either the left or right dowel immediately as the hand started to move, and this one became the new target. As soon as the subject saw the new target light up, she had to shout.

On average, 315 msec would go by between the onset of the motor response and the vocalization. Indeed, in some cases, the subject had already lifted the second dowel before she realized that it was the new target — that is, action preceded awareness. Even when a generous 50 msec was accorded to the lag between the onset of muscle contraction of the speech articulators and the beginning of the shout, this still left a quarter of a second between the grasping behavior and the conscious percept that led to the shout. This delay is the price that must be paid for consciousness.

To put this into perspective, consider a track athlete. Assuming, with a grain of salt, that the 250-msec delay also applies to the auditory system, then the sprinter is already out of the starting block by the time he consciously hears the starting gun go off! Similarly, a baseball player facing a pitched ball approaching at 90 mph must begin to swing his bat before he is conscious of his decision to try to hit the ball or let it pass. [Emphasis added.]

Think about it a bit, and the implications, and you’ll see why this book has grabbed my attention.


How to Stop the Conversation Department

At dinner with mostly-Lutheran friends the other night, one of them proposed one of those silly games that I find by turns eternally vexing and profoundly juvenile. He proposed that everyone pick the time in history they wish they could visit. There were the usual: “Lincoln delivering the Gettysburg Address”; “Signing the Declaration of Independence”; etc. My turn came, so I said, “The Resurrection, since I don’t believe it happened.” That killed the conversation right there.


Too Old to be Rational Department

Helen Thomas (“Dean of the White House Press Corps”) is 90. Isn’t it time for her to go into permanent retirement? Her recent suggestion that Israeli Jews should return to where they came from — Poland, Germany, the U.S., etc. — is simply inexcusable.


Or, maybe, she’s just an older version of Mel Gibson.


Biggest Threat to Privacy After CCTV Department

Software that knows what a (CCTV) camera sees. Read on.


Holocaust Deniers Department

Title of the blog entry: “Why is it that the people who always deny the holocaust took place are always the ones who wish it had?” Makes for interesting reading. Can’t vouch for authenticity of the examples cited, but if true, they’re just more examples of Islamic radical absurdism.


Porn Department

Got your attention, didn’t I.

The Huffington Post passes along this very interesting graphic regarding the pervasive nature of Internet porn. It includes my very favorite statistic that tells us that “family-values” Utah is the largest per capita porn-consuming U.S. state. (Thanks to the cross-reference from Anne of Carversville.)


Porn Department (II)

If a street photographer had taken these photos from within a crime scene, he would be arrested, and rightfully so.


I Can’t Believe I Build The Entire Thing Department

Article from yesterday’s NY Times about celebrations surrounding Africa’s fifty years of independence. What caught my eye, however, was this photograph. Built by the North Koreans “in pure Soviet-realism style,” this monstrosity is thirteen feet higher than the Statue of Liberty and cost the impoverished African nation of Senegal an undisclosed sum, although North Korea is estimated to have spent $27-70 million.

Really obscene.


One of my more successful compositions.

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0 Responses to The Best Justice is an Ex-Justice

  1. "If a street photographer had taken these photos from within a crime scene, he would be arrested, and rightfully so."On what grounds? First you have to define a crime scene. I would call it the area roped off, or restricting access to investigators only.I know of no laws that says a street photographer can't take photos of dead people on the street. Even if they are not allowed in that restricted area they still can photograph as best as possible from the perimeter. On public property. I don't know why that is any different than what you have been complaining about for the last few weeks. Not your type of street photography perhaps?Family can civilly go after them for distress if they want to post it as a Youtube video, but they certainly should not be arrested and I would hope the courts would throw it out if they were by some idiot police department.Fight for it all or none. This selective thing about who should not be harassed by police for street photography has lost all its credibility.

  2. "she also has made clear she regrets her pivotal vote in Bush v. Gore"As well she should be!! She sanctioned a coup.

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