HE SAYS THAT LIKE IT'S A BAD THING:

Souter’s Challenge to Scalia (E.J. Dionne, Jr., 6/03/10, TruthDig)

Souter, who did not mention Scalia by name, underscored “how egregiously it misses the point to think of judges in constitutional cases as just sitting there reading constitutional phrases fairly and looking at reported facts objectively to produce their judgments.”

The problem is not only that “constitutions have a lot of general language in them in order to be useful as constitutions,” but also that the U.S. Constitution “contains values that may very well exist in tension with each other, not in harmony.”

This means that “hard cases are hard because the Constitution gives no simple rule of decision for the cases in which one of the values is truly at odds with another.”

Souter attacked the fatal flaw of originalism—which he relabeled the “fair reading model”—by suggesting that it would have led the Supreme Court in 1954 not to its Brown v. Board of Education decision overturning legal segregation but to an affirmation of the 1896 Plessy v. Ferguson ruling upholding “separate but equal” public facilities.

“For those whose exclusive norm of constitutional judging is merely fair reading of language applied to facts objectively viewed, Brown must either be flat-out wrong or a very mystifying decision,” Souter said.

“The language of the Constitution’s guarantee of equal protection of the laws did not change between 1896 and 1954, and it would be very hard to say that the obvious facts on which Plessy was based had changed,” Souter argued. “Actually, the best clue to the difference between the cases is the dates they were decided, which I think lead to the explanation for their divergent results.”

They're both bad decisions, but suppose that the Court had simply required the South to follow Plessy and provide equal facilities and instrumentalities in every walk of public life to blacks and intervened in every instance where they were unequal. The empowerment such spending would have unleashed in black communities would hardly have been less effective in transforming them than access to previously segregated institutions was. Indeed, the prospect of spending that kind of money and developing black institutions would itself have killed Jin Crow.

Posted by Orrin Judd at June 3, 2010 5:56 AM