If someone whom a Republican president had appointed to a high government position were to give a speech defending the Supreme Court’s decision in Plessy v. Ferguson, which upheld racial segregation under the heading of “separate but equal,” one would expect a political firestorm.  Yet when just such a speech was recently given, it was greeted with “feelings of relief and joy” by Linda Greenhouse of the New York Times and other liberals. What gives?

The speech in question was the Harvard Law School commencement address on May 27 of recently retired Justice David H. Souter. That it should take such a tolerant, not to say approving, view of the Supreme Court decision widely understood as the constitutional bedrock of Jim Crow is, indeed, appalling – and yet ultimately not surprising, given the mode of constitutional jurisprudence that the speech defends.

According to the speech, the majority in Plessy not only intended to uphold the guarantee of equal protection, but they in fact succeeded:  “Members of the Court in Plessy remembered the day when human slavery was the law in much of the land.  To that generation, the formal equality of an identical railroad car meant progress.” Thus, according to Souter, for its time, in 1896, Plessy seems to have been decided correctly, just as Brown v Board of Education, for its time, in 1954, was decided correctly.  “But the generation in power in 1954 looked at enforced separation without the revolting background of slavery to make it look unexceptional by contrast.  As a consequence, the judges of 1954 found a meaning in segregating the races by law that the majority of their predecessors in 1896 did not see,” Souter said.

Although Souter sees “separate but equal” as evidence of progress in race relations, the history of the period hardly supports this view.  For example, the majority opinion in Plessy notes that the “colored race” had been the “dominant power in the [Louisiana] state legislature.” Why people who had been able to vote and to exercise their political rights to the extent of having a “dominant power” in the state government should see access to passenger cars as good as everyone else’s as progress isn’t at all clear.

The 1890s were a period of reaction against Reconstruction and the drive for civil and political equality for blacks. People at the time understood this.  Jim Crow-style segregation wasn’t a mark of progress in terms of racial relations, but a symbol of reaction against the post-Civil War amendments’ attempts to introduce civil and political equality.  Souter could have learned this from Justice John Marshall Harlan’s dissent in Plessy; but he strangely ignores that famous document in his discussion of the case. Indeed, given Souter’s understanding of the state of opinion in the 1890s, one wonders how he would explain the existence of Harlan’s dissent in the first place.

Harlan asserts the obvious – that requiring segregation with respect to railroad travel is intended as a badge of inferiority, regardless of the supposed requirement that the accommodations for each race be “equal.”  “The real meaning of the legislation,” Harlan asserts as an obvious fact that “all will admit,” is that “colored citizens are so inferior and degraded that they cannot be allowed to sit in coaches occupied by white citizens.” 

Faced with the argument that, as a formal matter, the Louisiana law applied equally to both whites and blacks (whites were as forbidden to sit in the car designated for blacks as blacks were in the car designated for whites), Harlan was willing to take judicial notice that the clear purpose of the law was “to compel the latter [i.e., blacks] to keep to themselves while traveling in railroad passenger coaches. No one,” Harlan continued, “would be so wanting in candor as to assert the contrary.” 

In this latter judgment, unfortunately, Harlan was wrong.  His colleagues on the Supreme Court argued that if “the enforced separation of the two races stamps the colored race with a badge of inferiority … it is not by reason of anything found in the act, but solely because the colored race chooses to put that construction upon it.” Strangely enough, this willingness to be blind to obvious facts is defended, in our own time, by a recently retired Supreme Court justice who recites that very centerpiece of the majority's argument without noting its tendentiousness.  Indeed, Souter is willing to accept it as reasonable, or at least as being reasonable for its time.  After all, according to Souter, for the people of the time (a mere three decades after the abolition of slavery) “the formal equality of an identical railroad car meant progress.”

At this point, the reader is no doubt wondering: what could have led Souter into such nonsense?  The answer apparently lies with the major point of Souter’s speech – his rebuttal of what he calls the “fair reading model” of constitutional jurisprudence, i.e., the view, as Souter puts it, that “deciding constitutional cases should be a straightforward exercise of reading fairly and viewing facts objectively.”

It isn’t hard to attack such a proposition.  As Souter notes, the Constitution promotes many objectives, which may conflict in certain circumstances.  New issues arise, which have to be judged in accordance with principles elaborated when those issues were unknown.  No one believes that constitutional jurisprudence can be a simple or technical matter, under any theory.

Presumably, however, constitutional jurisprudence should be guided at some level by unchanging principles.  Souter nods in this direction when he implies that judging has to find a way “to keep the constitutional promises the nation has made.”  This would seem to imply that the Constitution does indeed mean something, and that applying that something to the issues we face today is what constitutional jurisprudence is all about.

But rather than elaborate a jurisprudence based on this insight, Souter prefers to glory in indeterminacy and flux.  In his conclusion, he sees his ultimate superiority to the benighted believers in the “fair reading model” in his “belief that in an indeterminate world [he] cannot control, it is still possible to live fully in the trust that a way will be found leading through the uncertain future.  And to [him], the future of the Constitution as the Framers wrote it can be staked only upon that same trust.”

In other words, Souter can dispense with an insistence on adherence to principle because he trusts that the flow is in the right direction.  “That is how a judge lives in a state of trust…”  For that reason, he has to see the “separate but equal” doctrine of Plessy v Ferguson as a sign of racial progress, rather than as a sign of the victory of reaction that it so clearly was.  “Going with the flow” only makes sense if you regard the progress of liberty as unbroken and inevitable.  Otherwise, having some firm principles to serve as anchors isn’t such a bad idea.

Souter wants to protect a broad mandate for Supreme Court justices to make the United States the sort of country they think it should be, without having to worry overmuch about the Constitutional mooring for their exercise of this remarkable power.  However, leaving it at the “legal realist” attack on judicial opinions – that judges only dig up what they have buried – would raise the question of why unelected judges get to decide these issues in the first place.  So something more is needed, which turns out to be a watered-down relativism that relates the truth of any proposition to its time and place. (Of course, taking relativism seriously would totally undercut American veneration of the Constitution, and therewith the legitimacy of any jurisprudence based on it.)  None of these themes is articulated adequately. But mix them together and you end up with the reductio ad absurdum that is Souter’s Harvard address: Plessy was correctly decided.

John F. Burleigh is a partner in the New York law firm of Jacobs & Burleigh LLP.  Abram N. Shulsky is a senior fellow at the Hudson Institute in Washington.