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Souter at Harvard, on the Supreme Court

Former Justice David H. Souter delivers a compelling argument on why the Supreme Court must constantly interpret the Constitution and why that isn't 'activism.'

June 04, 2010

George Marshall's call to rebuild Europe was delivered at Harvard in 1947; Dwight Eisenhower's plea to students to resist the "book burners" was uttered at Dartmouth in 1953, at the height of the McCarthy era; Alexander Solzhenitsyn gave his searing critique of Western society at Harvard's graduation in 1978. To that short list of great commencement addresses should be added last weekend's eloquent exposition on the role of the U.S. Supreme Court in American society, delivered again at Harvard, this time by former Justice David H. Souter.

Souter's speech was a gracious but firm reply to those who glibly charge the court with "activism." The Constitution, Souter noted, does not often lend itself to rote interpretation. Those cases that require adjudication by the court are those that pit constitutional values against one another or that require fresh reading as times change.

To take Souter's two examples: Was the court being "activist" when it entertained a challenge to the publication of the Pentagon Papers even though the 1st Amendment clearly says Congress may make "no law" restricting free speech or a free press? And was it "activist" to declare separate-but-equal education unconstitutional in Brown vs. Board of Education just a few decades after concluding that separate-but-equal rail cars were permissible?

In the 1971 Pentagon Papers case, the court permitted the New York Times and the Washington Post to publish classified material about the Vietnam War. But it did not find that "no law" really means "no law." "The 1st Amendment was not the whole Constitution," Souter observed. "The Constitution also granted authority to the government to provide for the security of the nation, and authority to the president to manage foreign policy." To draw such a conclusion, despite the literal language of the 1st Amendment, is not activism; it is sensible interpretation of a document that embraces competing values — security and liberty, order, fairness and equality, among others.

Brown vs. Board overturned Plessy vs. Ferguson, which held in 1896 that separate rail cars for blacks, so long as they were substantially the same as those for whites, did not violate the 14th Amendment's promise of equal protection of the laws. But how could the court have been right in 1896 that separate rail cars were permissible, and right again in 1954 that separate classrooms were not? Because, as Souter explained, even though the Constitution did not change in the intervening years, our vantage point did.

"The members of the court in Plessy remembered the day when human slavery was the law in much of the land," Souter said. "To that generation, the formal equality of an identical railroad car meant progress. But the generation in power in 1954 looked at enforced segregation without the more revolting background of slavery to make it look unexceptional by contrast."

Souter's lucid speech should be read by every member of the U.S. Senate as it prepares to vote on Supreme Court nominee Elena Kagan, and his conclusion should guide them. "If we cannot share every intellectual assumption" of the framers, he said, "we can still address the constitutional uncertainties the way they must have envisioned, by relying on reason that respects the words the framers wrote, by facing facts and by seeking to understand their meaning for the living."

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