Souter: Ignorance of civics is greatest problem facing U.S.

Monday, September 17, 2012

Retired U.S. Supreme Court Justice David Souter said Sept. 14 the greatest problem facing America today is ignorance of civics — basic knowledge of the Constitution and an understanding of the structure of government.

“We know, with reliable evidence, that two-thirds of the people of the United States don’t know we have three separate branches of government,” Souter told an audience of more than 1,300 at the Capitol Center for the Arts in Concord, N.H.

Souter was the keynote speaker at the opening event of a New Hampshire civic engagement project called “Constitutionally Speaking.” He recently founded the New Hampshire Institute for Civic Education, designed to offer professional development courses to teachers. Souter, who lives in Hopkinton, is a lifelong resident of New Hampshire and has been the state’s Attorney General and served on both the Superior Court and New Hampshire Supreme Court.

Souter, who retired from the U.S. Supreme Court in 2009 after 19 years, rarely speaks publicly. He also made a decision upon his retirement to keep his personal court papers closed for 50 years.

But on Sept. 14 he spoke candidly for 90 minutes about his philosophy on constitutional interpretation, some of the rulings he was involved in, and one he was not. The insights he offered were tantamount to those he shared in his 2010 commencement speech at Harvard, which was hailed by legal scholars.

Souter, 72, said anyone who read his past opinions on campaign financing “knows perfectly well I would have gone the other way on Citizens United.” He was referring to the 5-4 ruling in Citizens United v. Federal Election Commission, issued after he left the Court, that said limiting political expenditures by corporations and unions violates the First Amendment. The ruling stemmed from a challenge to the federal campaign-finance law known as the McCain-Feingold Act.

Souter still hears cases on the 1st U.S. Circuit Court of Appeals in Boston and would not elaborate on Citizens United, saying it would lead to a discussion of politics. He drew laughter and applause.

He said judges must look beyond the plain language of the Constitution to resolve tensions between the competing rights and principles it guarantees. His position is at odds with that of Justice Antonin Scalia, who espouses adhering whenever possible to the strict language of the Constitution. Souter says it can’t be done.

“Nobody in their right mind in 1791 thought freedom of speech and freedom of association would carry with it the right to join organizations, like the NAACP,” Souter said. “If you interpret that narrowly, it’s not going to mean anything.”

“There are legally, constitutionally recognized values that can be in conflict with each other,” he said. “They can’t all win all the time.”

On the topic of civics, Souter said he fears ignorance of who to hold accountable for problems in government will leave people powerless to act and unmotivated to vote. “That’s the way democracy dies.”

In the event of another terrorist attack or financial meltdown, Souter said, those ignorant of civics will be more prone to hand over power to someone who professes to have the solution.

“I am not a pessimist, but I also am not an optimist about the future of American democracy,” Souter said. “The political problems are going to turn consequential. We’re still in the game, but we have serious work to do.”

Souter drew laughter when asked by a student how he would have ruled on the national health-care law. “I’ll pass on that,” he said.

Souter said the Court’s controversial 2005 ruling in a Connecticut eminent-domain case — in which he ruled with the 5-4 majority — was misreported by the press and misunderstood by the public. He said the holding that eminent domain could be used to take lands and hand them over to a private developer broke no new ground. That practice, he said, had been upheld by the Court since the days of railroads and power lines.

“That case is fascinating not for what it held but for the way it was perceived,” said Souter, whose former house in Weare, N.H., was picketed after the ruling came out.

Meanwhile, U.S. Supreme Court Justice Samuel A. Alito Jr. expressed a similar frustration late last week at what he said were inaccuracies in the news media about the Court and its decisions, saying it’s difficult to sit by when opinions are misinterpreted.

“Sometimes it’s inadvertent, and sometimes opinions are spun, just like everything else. … They’re reduced to a slogan that you put on a bumper sticker, and that’s very frustrating,” he told an audience of students, judges and others Sept. 14 at Roger Williams University School of Law.

Alito cited the Citizens United ruling, saying it involved a complex area of elections law and application of First Amendment law.

“Campaign finance is very complicated, so it’s easy to get it wrong, and sometimes people get it wrong inadvertently,” he said.

Still, he said it’s not a good idea to fire back at those who misunderstand a ruling.

“We speak through our opinions,” he said, adding, “we can’t engage in a back-and-forth with people.”

Alito famously shook his head and mouthed the words, “Not true,” during President Barack Obama’s 2010 State of the Union address to Congress, when he criticized the Citizens United ruling.

Alito said he was surprised when he joined the Court to find his work much more public than his prior duties on the 3rd U.S. Circuit Court of Appeals, where he said he was accustomed to a degree of anonymity. There’s much more media scrutiny of the Supreme Court, he said.

“They read things into the questions,” he said.

He also remarked that some of his colleagues had gone on shows such as “The Charlie Rose Show” and “The Daily Show.”

“This is the closest I get,” he said of his comments at the university.

Alito related a story told by a visiting justice from the Supreme Court of Canada who said that in his country, reporters are briefed on new court rulings inside a locked room.

“I thought this was a wonderful idea. Why don’t we implement this in the United States? Until I found out that at the end of the process they actually unlock the door and they let them out,” he joked.

Alito also said justices on the Court occasionally change their mind after casting their vote in a decision. He said about once a term, the outcome of a case changes during the opinion-writing process.

“It’s not a change of position by the opinion-writing judge, but it’s a change of position by others on the Court. When you read the majority opinion and you read the dissent, and you say, ‘Well, the dissent actually seems to be correct,’ and then a vote can change. That does happen,” he said.

When asked about the violent protests spreading in the Muslim world over an anti-Islam film, Alito would not comment directly on the First Amendment issues surrounding the video and said he had not seen it. But he touched on the difference between American laws on freedom of expression and those of many other countries, such as Germany and Canada, which he said limit those rights in accordance with the needs of a Democratic society.

“Our law is very speech protective, much more so than most of the rest of the advanced democracies,” Alito said.

Alito joined the Court in 2006 after being appointed by President George W. Bush.

Last week’s event was open to Roger Williams law students and alumni, as well as some public officials and a handful of news media.

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