Souter “gets it”
In Linda Greenhouse’s Saturday piece on Souter’s impending departure from the Supreme Court, she quotes a speech he recently delivered to the American Academy of Arts and Sciences:
Constitutional change, he explained, “comes about because judges evaluate significant facts differently,” or they “discover some relevance to a constitutional rule where earlier judges saw none.” He said that “historians can come to the rescue” by explaining how and why this happens. His ostensible text was the Supreme Court’s journey from the “separate but equal” holding of Plessy v. Ferguson in 1896 to the desegregation ruling in Brown v. Board of Education 58 years later.
This is also one source of ethical disagreements and ethical change. Two parties can come to different conclusions about the same facts, as can two societies separated by time. One reason it’s important to incorporate ethical disagreements into policy making is because the same facts can prompt division about the very nature of our problems, just as much as they can trigger divergence on how to solve those problems.
We focus a lot on the latter, but not nearly enough on the former.
-Sam
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