June 28. That's the day the Senate Judiciary Committee is scheduled to begin its dishonest but long-winded hearings on the nomination of General Kagan (that's how she chooses to be addressed) to the Supreme Court.
Some hope, as they do every time, that these hearings will be different. They point to the now-famous law review article in which the General complained that confirmation hearings for Supreme Court justices are exercises in "vacuity and farce," almost wholly devoid of substance, a "ritual dance." The nominee refuses actually to explain her judicial philosophy or jurisprudential approach to deciding constitutional or statutory issues (assuming she has one - and isn't that something we'd like to know) and refuses even more firmly to say anything substantive about anything even vaguely related to any issue which isn't wholly settled. (General K observes, in giving a sense of what it takes for an issue to be wholly settled, that Ruth Bader Ginsburg, at her hearings, three times admitted that she thought Dred Scott to have been wrongly decided. Is there one plausible nominee - or one senator from either party - who would today publicly disagree?)
Emily Dickinson described hope as well as anyone.
But you know, the whole point of hope is expectancy. We seek potential, look for possibility. We join Robert Kennedy (misquoting a line spoken to Eve by the Serpent in George Bernard Shaw's Back to Methuselah) in saying "I dream of things that never were, and ask why not."
And the truth is that the dream will, as I said, almost surely be dashed. The storm will be sore and will abash tweeting hope. General K will disown her words. That was then, this is now. Enough.
But if we cannot expect - or even seriously imagine - an honest answer on an actual issue or case (other than perhaps Dred Scott), it is at least marginally possible that she will own up to a jurisprudential approach that acknowledges the actual need for a jurisprudential approach.
So then-Judge John Roberts offered balls and strikes (although I suppose he would have denied that he called 'em as he saw 'em, insisting instead that he'd just call them as they were). And then-Judge Sonya Sotomayor explained that there was no such thing for her as jurisprudence; she just took the facts and the law and voilà.
We know better, and surely deserve better.
- It would have been good to know and to really hear a discussion from the-Judge Clarence Thomas of his rigorous textualism and willingness to jettison precedent and abandon principles of stare decisis when they lead to what he thinks wrong results however distasteful the right ones might be.
- It would have been good to learn from then-Judge Antonin Scalia that and why he believed legislative history to be fatuous claptrap and just how his "originalism" and his view of the ossified Constitution might actually apply in the real world, both when he can live with the results and when he finds them too distasteful.
- It would have been good to learn from then-Judge Stephen Breyer that he believes that when there's a conflict between the language of the Constitution and the values he finds in it, the values should control.
Perhaps they hadn't fully formulated those attitudes at the time of their hearings. It would have been good, would have been valuable to hear their thoughts, however inchoate and subject to maturation and change. And if one or another truly had no jurisprudential conception at the time, no idea of how to decide cases, it would have been worth knowing that he was, in fact tabula rasa.
Serious discussion of jurisprudence would be valuable even if it led nowhere. More valuable still if it revealed something honest about the men who were to ascend the highest bench in the land. It was, of course, not to be.
By now, though, as I suggested above, the three of them have made clear that they actually have philosophy and approach. Perhaps General K has thought about these things. Perhaps she has an approach, or at least ideas about how to formulate one. We're not likely to learn.
It is perhaps an accident of timing that retired timing that retired Justice David Souter recently decided to offer what I join Linda Greenhouse in hoping will prove but a first step toward presenting a comprehensive theory of constitutional interpretation.
The occasion was Harvard University's commencement. Souter was the speaker and he took the occasion to begin (?) to speak substantively about the business of constitutional interpretation.
He began by challenging what he called the "fair reading" approach. He didn't attribute it to anyone in particular, but it's pretty clear that he was referring to any model that pretends the answers are there just waiting to be found, that includes balls and strikes, originalism, texualism, and voilà. Souter acknowledged the appeal. Fair reading provides rules and rules provide grounding.
Sure, there are clear rules in the Constitution. (His example: one must be 30 to become a senator.) And rules do make it easy. (Though as Eugene Volokh recently pointed out, it was a clear rule violated as early as 1806.) But the interesting and problematic issues aren't easily resolved by them. (Hell, if they were, they wouldn't be interesting and problematic.) That's a lesson, he says, that he learned during his time on the Court.
Anyway, fair reading doesn't work for those problems because
- "[O]pen-ended guarantees, like rights to due process of law, equal protection of the law, and freedom from unreasonable searches" are simply not self-defining.
- Constitutional obligations may seem to conflict as in the Penatagon Papers case where the President's plenary power and duty to ensure national security and the guarantees of free speech and press seemed at odds.
- Facts aren't always simple. So, he almost but not quite says, that in 1896 when Plessy v. Ferguson was decided it was a "fact" that separate could be equal, while by 1954, when the Court decided Brown v. Board of Education, the "fact" was that it could not.
Souter is surely right, at least in general terms, about the first two of those things. The third, that facts are rarely simple, is perhaps appropriately, less simply true. Sure, facts can be confused and complicated. But even Souter doesn't quite say (and doesn't quite mean) that separate really was, as a matter of something like objective fact (whatever that might be), equal in 1896 and not in 1954. Rather, he's referring to what he calls "constitutional facts" which
require judges to understand the meaning that the facts may bear before the judges can figure out what to make of them.
That's what he meant by how separate but equal changed from a fact to a fiction in 58 years. And in that sense, maybe, he's right. Understanding shifted. But (and this is the ugly truth that Souter declines to mention) so did the personnel on the court.
In any event, the real point for Souter is that the Constitution itself, the document, simply doesn't answer all questions.
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.
What Souter doesn't much do is explain how a judge/justice - or even an engaged citizen - ought to go about making those choices. How do we go about it? If we're simply balancing what he describes as competing goods and deciding which ones should win when, if we're just asking what this year's (or day's) social construction of separate but equal means, then aren't we just allowing the Infallible (because they're last, not because they're perfect) Nine to make it up as the go? Whatever five think?
Is it really right for the Constitution to mean whatever Anthony Kennedy thinks it is, now that it's no longer what Sandra Day O'Connor thought it was (or Lewis Powell from whom O'Connor took over the role)?
John Marshall, arrogating power to the Court, declared in Marbury v. Madison that
It is emphatically the province and duty of the judicial department to say what the law is.
It's hard, today, to see another way being better. But it's a model that unconstrained does, indeed, make Kennedy's brain and soul the answer to nearly all questions of constitutional magnitude. So where the constraint?
We're talking here about first principles. And first conflicts. A limited government with plenary powers. A Bill of Rights that limits the government either by narrowing the plenary powers in small and specific ways (as one might read a contract) or that stands in opposition to those powers in broad and generous ways.
One thought is that the key is in the idea of contract, and a principle of contract law: Ambiguities in a contract will be construed against the drafter. Essentially, the contract was drafted by the government, ratified by the people (only white male people, but I digress). But the people could only vote up or down, accept or reject. So where there's doubt, where the question is "What can government control?" the answer is "Less." But then there are those provisions that grant rights. How to reconcile the Fourteenth Amendment's Equal Protection Clause with the Fifth Amendment's recognition of the value of private property?
Thomas and Scalia would claim that the language or history or something objective provides all answers and one must simply check the data. Breyer would say, the hell with the language, let's just look at constitutional values (whatever they may be) and apply them. Souter, though with less clarity (again, one hopes he'll keep at it), seems to want it all. And that's got to be right.
You start with the words. But the words require choices. Is it speech or religion at issue? How does the Establishment Clause square with Free Exercise? Can hate speech, which is protected, deny someone Equal Protection, which is protected? And whose rights are protected, by the way? And which rights? Where's the basis for a warrantless search? When is bail "excessive" or a punishment "cruel and unusual"? How in the world do we decide whether a law is ex post facto? And where in the Constitution do you find the authorization for the FCC to punish fleeting expletives?
So the words aren't enough. Which ones do you read? How do you read them? Narrowly or broadly? Or are some narrow and others broad?
Me, I start with the idea that individual rights are, unless specifically constrained, the trump card. But that leaves, frankly, lots of gaps. Which right applies when? And what happens when my rights bump up against yours?
The conversation (and that's really all it can be, since unlike Anthony Kennedy, who gets to decide, I don't have even a vote) continues.
But it won't, I don't imagine, continue where it should: In the Senate Judiciary Committee when Senators posture and General Kagan dissembles.
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