Damn it
I have a theory that the Supreme Court tends to lag reality by a decade or so. In the 1970s, as America contemplated the inflationary consequences of the Great Society and the war in Vietnam, we had a Great Society court, and we all learned the phrase "got off on a technicality." (Which is probably why we had to put up with Starsky and Hutch and all those Death Wish movies.)
In modern times, after the historic election of a centrist Democrat, we get the bipolar (Limbaugh v. Clinton) court. On one side, representing the Limbaughs, the reliable Scalia and his young turks - Alito, Roberts, and Thomas - all selected because of their ideological and chronological virtues. On the other side, the Old Clintonians - Ginsburg and Breyer, and the warrior, John Paul Stevens, who is now 89 years old.
For a long time there was a center, too. In his wonderful book, The Nine, Jeffrey Toobin argued that the center was essentially Sandra Day O'Connor. In fact, the thesis of the book was that O'Connor was the one who prevented a complete conservative re-make of the U.S. legal system because of her consistent willingness to oppose her fellow Republicans. Toobin commented in one interview that "it was O'Connor who frustrated Rehnquist time after time...she voted against him on abortion...against him on race issues..."
Of course she did not do this on her own. The center of the court - the real Supreme court, if you will, consisted of O'Connor, Kennedy, and Souter. And now, with Souter's retirement, we will have a center of one. President Obama will have no choice in this - of course he will appoint a good judge to the court, but the dominant consideration will be ideological balance. Since his predecessor appointed two far-right ideologues, this will require some strong medicine at the other end of the spectrum.
"Great," you might say, "that's the way it's supposed to work. It's an adversarial system." No, no it's not. The plaintiff and the defendant are supposed to be the adversaries, not the justices! That's what's wrong with the Supreme Court, and what the last administration made worse. The Supreme Court should be a collaborative body, a collective intelligence, a whole greater than its parts. Appointing ideological apparatchiks polarizes the Court and sets the stage for backlash and a loss of popular credibility. As David Hackett Fischer once said in his critique of Hegelian history, "an argument between two lunatics is unlikely to result in a triumph of reason."
Souter hates ideology. According to Toobin, his most difficult moments came after Bush v. Gore:
Toughened, or coarsened, by their worldly lives, the other dissenters could
shrug and move on, but Souter couldn’t. His whole life was being a judge. He
came from a tradition where the independence of the judiciary was the foundation
of the rule of law. And Souter believed Bush v. Gore mocked that tradition. His
colleagues’ actions were so transparently, so crudely partisan that Souter
thought he might not be able to serve with them anymore.Souter seriously considered resigning. For many months, it was not at all clear whether he would remain as a justice. That the Court met in a city he loathed made the decision even harder. At the urging of a handful of close friends, he decided to stay on, but his attitude toward the Court was never the same.
So maybe that's why he's leaving early. There's no other obvious explanation - he's only 4th in seniority, his brain is working fine, he's been a good intellectual contributor and an important balancing element. But he doesn't like Washington (had a bad mugging a few years ago), and he's turning 70.
Wha...? Doesn't he know he's supposed to be driven by a neurotic desire for power and social acceptance? Doesn't he know that there are people who would chop off their right foot with a dull hatchet to have his job? Doesn't he know that he is living the dream? Doesn't he know that you don't retire from the Supreme Court?
He doesn't care. That's what's right about David Souter. He's recognizably human. He's not in this because he needs power, or money, or fame. He actually cares about legal issues - about thinking things through and getting the right answer.
That's what a Supreme Court Justice should look like. We don't need one less David Souter. We need eight more.
Too late now. Singular human being that he is, he's going home:
Damn you, David Souter. Damn you to hell.
posted by The Front at 1:43 PM
5 Comments:
The Surpreme Court should be a collaborative body. It is not, and never really has been, although it has had exceptional moments (Brown. v Board).
After my years at the ACLU I left fairly convinced that the idea that the law as practice provided an opportunity deliberative guidance was somewhat mythical- the normal advantage of law was rather to provide a ritualized game of conflict resolution.
It is in fact really only a chunk of the 20th century that the Court did much good for the people at all, and that was at the behest of tough- minded, persuasive idealists who were more successful at yanking around the middling middlers than the right-wingers.
Men and women of great courage have changed that on occasion. But mostly, it is a forum for ideological rationalization.
Dr. X, A fundamental difference in our outlook is that I see centrists as enabling the far right, where as you see the centrists as providing a good, moderating force on society.
For the Supreme Court, at their best, they are ten years ahead of society (Brown v. Board). But this required tremendous, risk taking courage to defend principles. Souter would have gone along (everyone did BTW) but would not have lead. And with only two true moderate liberals on the court, and Stevens, who is liberal largely in comparison with the right wing nut jobs, its time for a leadership appointment.
Many lawyers hated Douglas. To hell with them: freedom was on the line then and now. Douglas did a lot of real good for the Bill of Rights as practiced in American society. His missteps were generally on the side of more freedom, not less. I want a ferocious advocate of democracy and freedom, William O Douglas II riding shotgun to the Bill of Rights, a big human being standing in front of Scalia and his bloodless minions and staring him down.
Obama, a smarter chap than me, is not likely to make quite that appointment- he's going to be more subtle, but I suspect the appointment will nonetheless be expertly choosen, a quieter, master persuader, one I hope whose deep love of the Constitution will burn long.
I think moderates can enable progressives too...as in "my administration is the only thing between you and the pitchforks" (link).
One fundamental problem with modern conservatives, as opposed to the kind I like, is that they kind of got the idea that, since they were rich and had lawyers, they could ignore laws and regulations.
Even the Bush administration realized you couldn't allow that, KPMG discovered.
But yeah, all too often law is politics by other means. The German courts, highly-respected in their day, rolled right over. Here are some excerpts from a review of a book called Hitler's Justice: Courts of the Third Reich, which was written in the late 80s by a German legal scholar. Tell me if any of this sounds familiar to you:
- "Muller paints a terrifying portrait of a judicial and administrative system where legal niceties are at least occasionally observed but where decency and justice have ceased to exist-a nightmarish caricature of law without moral value. Legalization of euthanasia and sterilization, the creation of concentration camps, the ruthless crushing of political opposition, the cancerous growth of racist and anti-semitic laws labelling Jews as civilly-dead are introduced in rapid succession with nary a word of protest from the lawyers and judges who then proceed to apply the laws as routinely as one would apply some technical provision of the Internal Revenue Code."
- "Where the Nazi regime could not obtain its desired results through the official judicial system, it simply created special courts not subject even on paper to the minimal constraints of due process."
- "Muller's book reminds us of the disheartening truth - the fragility of even long-standing legal systems and the fact that not only will they crack under stress but may in fact be enlisted as a potent tool in the legitimation of oppression and the powers of evil. Remember: the Nazis did what they did not by ignoring law but by manipulating it."
I oppose this dynamic of corruption no matter whose ideological cause benefits. The Supreme Court needs to defend the constitution and preserve civil society. The fact that we have a constitution and civil society is radical enough.
Defending them is a major ideological step in itself.
One worth risking pretty much everything for, actually.
Nice Godwin, huh?
When I wrote the original post I was unaware of this biography of Souter.
From the Washington Post Book World review:
"At his 1990 confirmation hearings, Souter was asked about his judicial philosophy and said he "preferred the approach of the late Mr. Justice Harlan above all others." Frequently a dissenter on the Warren court, John Marshall Harlan is remembered chiefly for his adherence to precedent -- the Supreme Court's past decisions -- and for deciding cases according to flexible common law principles rather than originalist rules. Sure enough, Souter has done his share of Harlan-esque judging, most famously in Planned Parenthood v. Casey, the 1992 decision that declined to overrule Roe."
The theory that I advance is that this is an unpopular approach because most judges want to be famous and powerful, and you can't be famous or powerful if you don't make big changes. Earl Warren's court legislated from the bench. So would Scalia's if he had the votes.
Souter told everyone upfront about his conservative principles, and then followed them.
I like that he managed to piss off conservatives in the process, by practicing a more thoughtful and socially useful form of conservatism than they did. Souter's approach actually conserved established rights and freedoms.
Souter, at times almost singlehandedly, defended key points of a functioning civil order, and for that I say he deserves a damn medal.
More on this from The New Republic.
How do I put this? I am an outcome-based progressive constitutionalist. Stare decisis is indeed as described, and has a powerful hook in legal history, but it is a grisly business to review its history, grinding down the civil, labor and constitutional rights movements between the end of the civil war and a good chunk of even the Warren court.
The whole conservative point of the Bill of Rights is to protect individual rights against tyrannical majorities, or more specifically against government authority. When stare decisis is used to that end, I applaud it. When it was used, as it frequently was, to scupper civil liberties right and left in direct contradiction to the plain meaning of the Constitution, I had and have little respect for as a legal principle. The Bill of Right was and remains the supreme law.
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