A tribute to Justice Souter, and his recent speech on civics education

Justice Souter was woefully underestimated. He was reviled by the right because he turned out to be a moderate — someone who, especially given the rightward drift of the Court in the since Reagan was elected, seemed to the right an outright leftist. That he had been appointed by George H.W. Bush, a Republican, made Souter seem to the Right not merely a leftist, but also a traitor. Nor did the Left particularly appreciate him except, perhaps, as a man they recognized as independent in his thought.

But perhaps Souter’s biggest failure as a public figure was that his style did not fit his time. Souter did what I learned judges are to do: strive hard to do justice in each individual case. His opinions reflected his strenuous effort to make sure the law was interpreted to ensure that the parties to the lawsuits he was judging were treated justly.

Unfortunately, however, he served during a time when overreaching ideologies became the fashionable way to judge problems, especially legal problems. Law and Economics, a legal movement that interprets law entirely through the lens of a purported judgment as to its ability to efficiently allocate economic resources, has grown during my professional career from one approach among many to, arguably, the most dominant mode of legal thought in those circles that are concerned with delineating theoretical approaches to law. Since Ronald Reagan was elected, we’ve raised an entire generation that accepts without any consideration of the realities that anything government does it does incompetently and that labor unions are corrupt institutions that entrench incompetence. You’d never know that the era of the greatest American affluence (an affluence shared far, far widely than the wealth the U.S. has today) followed thirty years of big government and the rise of labor unions to the apex of their power. You’d never know that my father, the son of immigrants who grew up in poverty (which he didn’t even dream of as poverty) in the Depression, served in WWII, and was a POW in Germany, attributes his success (which, of course, is entirely resonsible for mine) to the fact the goverment paid entirely for his higher education by way of the G.I. Bill (imagine: investing in your country’s future!). He attributes his remarkable good health at 85 to health care he receives from the Veterans’ Administration, which he says is as good as better as the health care anyone he knows receives.

So when Justice Souter told the attendees at the American Bar Association’s annual meeting earlier this month that we need better civics education in our schools, he spoke the truth. We also need far, far better history instruction.

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A poliitician would be an excellent replacement for Souter.

Gordon Silverstein has a terrific column explaining why President Obama should appoint a politician to the Supreme Court vacancy created by Justice Souter’s retirement. I think he’s spot on in understanding why, as Obama explained, it’s important that the future Justice “understands that justice ‘is also about how our laws affect the daily realities of people’s lives.’” Silverstein explains that many of the Court’s cases involve the Constitution’s impact on political and legislative functions, that none of the current justices has any legislative experience, and that it would make sense to have someone on the Court who really understands what the real-world consequences of its decisions:

Someone with the appropriate legal experience who also has faced voters and listened to constituents, someone who has rounded up votes to pass legislation and has actually implemented policy, would bring to the bench an intimate knowledge and understanding of the American political system, its institutions, and how they actually work, on the ground, in the 21st century. 

I agree too with Silverstein that most law professors would not identify these as the Court’s needs. But there is too much abstraction on the Court these days — too much concern with doctrinal purity and not enough with the practical consequences of that doctrine. Take campaign finance for example. Many opponents of campaign finance regulation ground their stance in the belief that the right to free speech forbids restrictions on the right to give money to political campaigns. They equate money and speech. But if  the ways unregulated spending affects political speech is  in fact to restrict the access of multiple viewpoints (by, fo example, crowding out of what in essence is a limited range of communication the interests of less well funded voices), then the equation of money with speech makes no sense — if  it limits the voices heard, unregulated campaign finance limits free speech. A politician will certainly have a better sense of the reality of the situation than any sitting member of the Court.

Like most legal questions, we cannot definitely answer this question without considering its practical effects. I hope, therefore, that Obama strays from the style we’ve seen for too long: appellate judges and lawyers with strong academic support. A politician would be a great alternative.