That's the title of Linda Greenhouse's latest post on the New York Times Opinionator blog. LINK
Justice David H. Souter left the Supreme Court nearly a year ago without really saying goodbye. There were no pre-retirement interviews of the sort that Justice John Paul Stevens gave to several journalists this spring. There were no farewell press conferences like those that several justices who retired during the 1980’s and 1990’s were willing to endure for the sake of placing their own codas on their Supreme Court careers. And since Justice Souter has decided to keep his papers closed to the public for 50 years, few people in a position actually to remember his Supreme Court tenure (1990-2009) will be able to explore the archive and learn what conclusions this most private of public figures drew from his part in two decades of profound debate about the role of the court and the meaning of the Constitution.So it was with a mixture of relief and something close to joy that I listened last week to David Souter’s commencement address at Harvard, his undergraduate and law school alma mater, which awarded him an honorary degree. (I was in the audience as a member of Harvard’s Board of Overseers; like the thousands of others seated at the outdoor gathering, I had no idea what to expect.)
And:
But for those who care about the Supreme Court, Justice Souter served up some rich fare: his own vision of the craft of constitutional interpretation and a defense of the need for judges to go beyond the plain text — what he called the “fair-reading model” — and make choices among the competing values embedded in the Constitution. Doing this was neither judicial activism nor “making up the law,” he said; rather, it was the unavoidable “stuff of judging,” and to suppose otherwise was to “egregiously” miss the point of what constitutional law is about.
His stance was modest — “Over the course of 19 years on the Supreme Court, I learned some lessons about the Constitution of the United States,” he began — but the prose was muscular, in contrast to the writing style in many of his opinions. The “notion that all of constitutional law lies there in the Constitution waiting for a judge to read it fairly” is not only “simplistic,” he said; it “diminishes us” by failing to acknowledge that the Constitution is not just a set of aphorisms for the country to live by but a “pantheon of values” inevitably in tension with one another. The Supreme Court may serve no higher function than to help society resolve the “conflict between the good and the good,” he suggested:
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. And we want not only liberty but equality as well. These paired desires of ours can clash, and when they do a court is forced to choose between them, between one constitutional good and another one. 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.
The full text of Justice Souter's address, as delivered, is here.; more online posts from Greenhouse, here.
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