June 4th, 2010
06:08 AM ET

Souter v. Scalia at Harvard Yard

Stephen Prothero, a Boston University religion scholar and author of "God is Not One: The Eight Rival Religions that Run the World," is a regular CNN Belief Blog contributor. 

By Stephen Prothero, Special to CNN

Score one for David Souter. In the fisticuffs that is the Supreme Court, the recently retired justice often found himself on the losing side of 5-4 decisions. But in delivering Harvard’s 2010 commencement address last week, he gave the court’s conservatives a soft-spoken smackdown.

Rather than attacking constitutional “originalism” and its highest-profile proponent - Justice Antonin Scalia - by name, Souter aimed his jabs at what he called the “fair reading model” of constitutional jurisprudence. According to this model, the work of the Supreme Court is as simple as 1-2-3, where 1 is to read the Constitution fairly, 2 is to apply the facts of the case objectively and 3 is voila!

Nonsense, says Souter. This misguided approach misunderstands both the Constitution and what judges actually do.

In a tour de force that will likely be debated for decades to come, Souter focused on two cases: the Brown v. Board of Education desegregation case of 1954, and the New York Times Co. v. United States Pentagon Papers case of 1971. But at the heart of his argument was a simple yet far-reaching analysis of the nature of the constitutional text.

According to Souter, a President George H.W. Bush nominee, the Constitution is a document at war with itself - a mashup of conflicting values. “Its language grants and guarantees many good things,” he observes, but these good things “compete with one another.”

Moreover, there is nothing in the Constitution proper that tells us how to choose among order and liberty, or liberty and equality. So judges must do that choosing, “not because language is vague but because the Constitution embodies the desire of the American people, like most people, to have things both ways.”

At the end of his address, which packed an even more powerful punch because of Souter’s disarming, aw-shucks delivery, the man who once occupied the Supreme Court seat now held by Justice Sonia Sotomayor waxed philosophical. Although he drew on the jurist Oliver Wendell Holmes for his observation “that certainty generally is illusion and repose is not our destiny,” the spirit that animated his final remarks derived more from the Protestant theologian Reinhold Niebuhr, whose work called attention to the unintended consequences of efforts by mere mortals to grasp the reins of history.

The “fair reading model” is driven, Souter concluded, by an understandable yet nonetheless naive “longing for a world without ambiguity” - by the “basic human hunger for certainty and control.”

Souter’s address deserves a serious reckoning in courtrooms across America, but it can also be applied to the world of religion (from whence it may well have sprung), and not only for its Niebuhrian call to give up on childish illusions of certainty and unchangeability.

Even more than the Constitution, which was written by a group of men over a span of months, the Bible, which was written by many different voices over millennia, is (to borrow from Souter) a “pantheon of values.” Moreover, just as there are Constitutional originalists who read passages from the Constitution as absolute, there are Biblical fundamentalists who read individual passages from scripture as absolute. Souter is not one of them, in part because he is steeped in Episcopal tradition, which has historically resisted the “proof text” method of fundamentalists in the name of reading the Bible as a whole.

So one way of reading this commencement speech, which argues against piecemeal interpretations of Constitutional passages, is as an application of those liberal Protestant principles to questions of Constitutional law.

All this takes me back to questions I raised in a prior post about the impending confirmation hearings of Solicitor General Elena Kagan for the Supreme Court: Does religion matter? Should our selections of Supreme Court justices be religion-conscious or religion-blind?

If Souter was speaking the truth at Harvard (and I think he was), we should take religion into account in selecting our most powerful justices, because no matter how fairly they read the Constitution and how objectively they apply the facts of a case, in the end they must, as Souter pointed out, adjudicate among competing goods. And this adjudicating—this judging—they can only do in light of what they themselves most deeply value.

The opinions expressed in this commentary are solely those of Stephen Prothero.

- CNN Belief Blog contributor

Filed under: Anglican • Christianity • Courts • Opinion • Protestant

soundoff (8 Responses)
  1. Krystenz Follisg

    Hi, Neat post. There's a problem with your site in internet explorer, would test this… IE still is the market leader and a good portion of people will miss your magnificent writing due to this problem.

    July 5, 2012 at 6:18 am |
  2. glenn

    That people "want it both ways" constitutes a "powerful punch" and a "tour de force"? Give me a break. Such platitudes, and the manufactured awe of audiences like Mr. Prothero, are not likely to re-make reliably liberal Justice Souter into an intellectual heavyweight.

    July 29, 2010 at 7:53 pm |
  3. Randy

    I thought Souter's speech was annoying, for a reason having nothing to do with the politics or jurisprudential theory of it: why did Souter never once talk to or about THE GRADUATES? This was a graduation speech, after all. I guarantee you that maybe 2% of the students in the audience gave one whit about what Souter had to say. How would you like to be an undergraduate, one of the country's best and brightest on one of the proudest days of your life, with a really famous SC justice about to address you and maybe impart some (hopefully amusing) advice – and all he does is make the entire speech about himself and some disagreement he had with complete strangers back at his old job? Not a word to you or your class – almost no acknowledgment of the occasion of the address or that you, the students are even present? David Souter was never called socially adept, but his cluelessness in this speech rises to the level of obnoxious. At least throw the kids a freaking bone, you stupid self-centered dork. This day is for them, not for you. A$$.

    June 9, 2010 at 8:52 am |
  4. sjenner

    Very interesting points. Like any interpretation, the goal should be to cleve to the spirit of the text as closely as possible. And in some instances, it has been Scalia and Thomas who have done so more than those who may think of themselves less as originalists (in one recent case in particular Scalia and Thomas dissented from the majority which held that convicted child molesters could be indefinitely imprisoned despite having fully served their sentences based on subtle shifts of language and the over-application of prior case law–no one wants a child molester free and about, but such results focused outcomes are always dangerous). I would agree, however, with the underlying religious point, that too much God is painted as a deity of petty rules rather than the awesome Creator. And as the 'righteous' oush ever for purity, the Truth is lost beneath.

    June 4, 2010 at 5:18 pm |
  5. Margaret Terry

    Great post, very informative - keep up the great work!

    June 4, 2010 at 3:44 pm |
  6. Reality

    Why is the Supreme Court controlled by graduates of the Harvard and Yale law schools?

    e.g. Three or more past and current Justices

    Harvard Law School

    1.Harry Blackmun
    2.Louis Brandeis
    3.William J. Brennan, Jr.
    4.Stephen Breyer – current
    5.Harold Hitz Burton
    6.Felix Frankfurter
    7.Melville Fuller – did not graduate
    8.Ruth Bader Ginsburg — graduated from Columbia Law School- current
    9.Oliver Wendell Holmes, Jr.
    10.Anthony Kennedy – current
    11.William Henry Moody – did not graduate
    12.Lewis Franklin Powell, Jr.
    13.John Roberts – current
    14.Edward Terry Sanford
    15.Antonin Scalia – current
    16.David Hackett Souter

    Yale Law School

    1.Samuel Alito – current
    2.Henry Baldwin
    3.David Davis
    4.Abe Fortas
    5.George Shiras, Jr.
    6.Sonia Sotomayor – current
    7.Potter Stewart
    8.William Strong
    9.Clarence Thomas – current
    10.Byron White

    June 4, 2010 at 2:59 pm |
    • jonathan

      because they are viewed as automaticallty smart..

      June 5, 2010 at 8:54 pm |
  7. SeanNJ

    Unfortunately, the suggestion to adjudicate from "what they themselves most deeply value" runs absolutely counter to the rest of the opinion. A "core value" is unlikely to be challenged by any other "competing goods," or it would make for a very unstable foundation.

    June 4, 2010 at 2:09 pm |
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