Deconstructing David Souter

National Review, Dec 3, 1990 by Terry Eastland

Eastland, a resident fellow at the Ethics and Public Policy Center in Washington, D.C., writes frequently on law, the media, and religion.

He can't be worse than Brennan. But is Justice Souter really a conservative? A close reading of his testimony centers on one key phrase: "Get it right."

'A PRESIDENT who wants to avoid a battle like mine, and most Presidents would prefer to, is likely to nominate men and women who have not written much, and certainly nothing that could be regarded as controversial." So wrote Robert Bork last year in The Tempting of America, proving himself a prophet. President Bush did not experience a Bork-like confirmation battle with David Souter in large part because Souter had written almost nothing, apart from his mostly unexceptional judicial opinions, and given little political offense. Coached to avoid conflict with liberals, and skilled at leaving his Senate interrogators in a state of intellectual confusion that they somehow found satisfying, Souter maneuvered his way through the Judiciary Committee, winning Senate confirmation by a 90 to 9 vote.

The Souter hearing did manage to focus on two main substantive issues-the unenumerated right of privacy and the interpretive philosophy known simply as originalism. As we await Souter's first opinions from his new vantage point, his testimony on these matters deserves review.

Since the Bork confirmation battle, judicial protection of a right of privacy not found in the text or history of the Constitution has been the central concern of Senate liberals, Judiciary Committee Chairman Joseph Biden especially. Not surprisingly, the first question, asked by Biden, of David Souter during his hearing dealt with the nominee's view of such a privacy right. While Souter had not dealt with this area of the law as a state or federal judge, he apparently had studied the issue enough to respond, as he did, without hesitation. "I believe," he said, "that the due-process clause of the Fourteenth Amendment does recognize and does protect an unenumerated right of privacy."

As he explained to Biden and reiterated throughout his testimony, Souter found this unenumerated right in the history of the Constitution and the life of the nation. Those who framed and ratified the Constitution and the Bill of Rights had "a concept of limited government power which is not simply to be identified with the [textual] enumeration of those specific rights." Souter observed that in determining which unenumerated rights are fundamental and merit judicial protection, courts should "inquire into the traditions of the American people," which include but are not confined to the founding period itself.

Souter's position on privacy was essentially that of Justice John Marshall Harlan 11, as Souter himself noted in his testimony. Harlan elaborated his view of the due-process clause in a dissenting opinion in 1961 in Poe v. Ullman, in which the Court dismissed a constitutional challenge to a Connecticut statute prohibiting the use of contraceptives. Four years later, of course, the Court struck down the very same statute in Griswold v. Connecticut, with Harlan filing a concurrence reflecting his Poe opinion.

The most powerful criticism of Harlan's (and Souter's) position has been well expressed by Bork himself in The Tempting of America: Harlan's methodology of searching our tradition for unenumerated rights offers "no protection against judicial imperialism." During the hearings Souter did not volunteer a response to this criticism, nor was he asked to. Furthermore, in answer to a question posed by Biden, he declined to align himself with the most recent judicial effort to provide at least some security against the worrisome prospect Bork raises.

Footnote for History

LAST TERM, in his plurality opinion in one of the weirder cases to reach the Court in recent years, Michael H. v. Gerald D., Justice Antonin Scalia wrote one of those footnotes destined for the judicial archives of major wars waged in the smallest type, in which he argued that in defining and enforcing a liberty within the due-process clause, the Court should be guided by "the most specific level at which a relevant tradition protecting, or denying protection to, the asserted right can be identified." General traditions, he said, "provide such imprecise guidance [that] they permit judges to dictate rather than discern the society's views," and a rule of law that binds neither by text nor by any particular, identifiable tradition is no rule of law at all." Souter told Biden he did not agree with Scalia's footnote but rather with Justices O'Connor and Kennedy, who joined all of the Scalia opinion except for his footnote, saying they could not "foreclose the unanticipated by the prior imposition of a single mode of historical analysis."

Like O'Connor and Kennedy (but unlike Scalia and Chief Justice Rehnquist, who joined every jot and footnote of the Court's opinion), Souter would be guided by a broad understanding of tradition. The question is: Just how? Souter's testimony provides grounds for a reasonable guess at the answer.