sexta-feira, 4 de junho de 2010

Justice Souter e Harvard

New York Time registra hoje a presença do Justice Souter aposentado na Corte Suprema americana num evento de colação de grau em Harvard Direito semana passada. Reflitam como é a trajetória e a responsabilidade de interpretar uma constituição nos Estados Unidos

New York Time de 3 de junho de 2010

Linda Greenhouse on the Supreme Court and the law.

Antonin Scalia, Constitution, David Souter, Supreme Court

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.
Adam Hunger/Reuters David Souter at Harvard’s commencement on May 27.

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.)

As a matter of immediate impact, this was not a speech to rival Secretary of State
George C. Marshall’s announcement, in his Harvard commencement address in 1947, of
his plan for the reconstruction of postwar Europe. Nor is it likely to attain the
resonance of Winston Churchill’s declaration the previous year, upon receiving an
honorary degree at Westminster College in Fulton, Mo., that the cold war had begun
and that “an iron curtain has descended” across Europe.

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.

Justice Souter named no contemporary names. He did not mention Justice Antonin
Scalia, whose “originalist” doctrine of constitutional interpretation made inroads
in recent years, most notably in the 2008 decision, from which Justice Souter
dissented, declaring an individual right to gun ownership under the Second
Amendment. But I have to think he had Justice Scalia in mind when he observed that
“behind most dreams of a simpler Constitution there lies a basic human hunger for
the certainty and control that the fair-reading model seems to promise.”

Justice Scalia has acknowledged as much himself, in a famous law review article he
published in 1989, three years after he joined the court. Titled “The Rule of Law as
a Law of Rules,” the article in The University of Chicago Law Review asserted that
judges need clear rules, rather than malleable balancing tests of the sort favored
in modern constitutional law, in order to avoid straying into the realm of personal
preference. By announcing a clear rule of decision, Justice Scalia wrote, “I not
only constrain lower courts; I constrain myself as well.” He added, “Only by
announcing rules do we hedge ourselves in.”

Justice Souter said he well understood, and indeed had shared, that “longing for a
world without ambiguity, and for the stability of something unchanging in human
institutions.” But he said he had come to accept and even embrace the “indeterminate
world” in which a judge’s duty was to respect the words of the Constitution’s
framers “by facing facts, and by seeking to understand their meaning for the

Neither did he refer to his own successor, Justice Sonia Sotomayor, who during her
Senate confirmation hearing last summer professed her “rigorous commitment to
interpreting the Constitution according to its terms,” and to deciding cases “with
the law always commanding the result in every case.” But he did note that with
another confirmation season approaching, “we will as a consequence be hearing and
discussing a particular sort of criticism that is frequently aimed at the more
controversial Supreme Court decisions: criticism that the court is making up the
law, that the court is announcing constitutional rules that cannot be found in the
Constitution, and that the court is engaging in activism to extend civil liberties.”

He framed the speech as a rebuttal to those criticisms and he discussed in some
detail two historic cases, both from decades before his own tenure. One was the
Pentagon Papers case from 1971, which required the court to weigh “a conflict of
approved values”: the government’s claim that national security required publication
to be suppressed versus the claims of The New York Times and The Washington Post
that the First Amendment gave them the right to publish the government’s secret
history of the war in Vietnam. The First Amendment prevailed.

The other decision was Brown v. Board of Education, the 1954 school desegregation
case, which Justice Souter invoked for a different point. Contrasting Brown with
Plessy v. Ferguson, the 1896 decision that interpreted the 14th Amendment’s
guarantee of equal protection as permitting “separate but equal” public facilities
for blacks and whites, Justice Souter said the difference between the two was not
one of competing constitutional values but of “the subtlety of constitutional

The justices in both cases intended to uphold the guarantee of equal protection, he
said, but diverged in how they understood the meaning of legally mandated
separation. To the post-Civil War generation that upheld segregated railroad cars,
“the formal equality of an identical railroad car meant progress” in light of how
recently slavery had been abolished, he noted, while by 1954, a court that was still
composed entirely of white men understood that enforced segregation “carried only
one possible meaning,” a constitutionally unacceptable judgment that blacks were
inferior to whites.

In other words, Justice Souter continued, the meaning to the justices of the fact of
segregation had changed. “The meaning of facts arises elsewhere and its judicial
perception turns on the experience of the judges, and on their ability to think from
a point of view different from their own,” he said, providing a pretty good working
definition of empathy. “Meaning comes from the capacity to see what is not in some
simple, objective sense there on the printed page.”

“Was it activism to act based on the current meaning of facts that at a purely
objective level were about the same as Plessy’s facts 60 years before?” he asked.
“So much for the assumption that facts just lie there waiting for an objective judge
to view them.”

Justice Souter could, of course, have gone on to say more — to leave the safe zone
of Brown v. Board of Education and, for example, to offer some thoughts on how a
changed judicial appreciation of facts led the court seven years ago, in Lawrence v.
Texas, to repudiate a recent precedent and to begin to build a constitutional
framework for gay rights. There are obviously many current controversies, from
abortion to criminal sentencing to the war on terrorism, that fit Justice Souter’s
construct and on which a more adventurous retired justice might have been tempted to

I wrote earlier in this column that I responded to Justice Souter’s speech with
feelings of relief and joy. The relief came from seeing that this thoughtful man, a
young 70, has not retreated fully into the privacy he cherishes, but was willing
after all to share his wisdom. The joy came from supposing that he might keep on
doing it.

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