Parsing the Words of the Supreme Court Justices

July 02, 2009

The Washington Post
July 2, 2009
Those who follow the the Supreme Court closely constantly search to read between the lines of opinions, parse the structure of sentences and find the message in what's missing as well as what's written. Walter Dellinger, the sharp-eyed Supreme Court practitioner, spotted an "essay within an opinion" from Justice David H. Souter in the justice's dissent from a decision that declined to recognize a constitutional right for prisoners to have DNA evidence tested. Souter seemed to depart from the subject at hand when he said he agreed with the majority that in deciding to recognize "an individual right unsanctioned by tradition . . . the beginning of wisdom is to go slow." Souter never mentioned gay marriage, but Dellinger, writing in Slate, said it is "hard to avoid the conclusion" that it was one of the issues he had in mind. "His carefully nuanced message both defends the legitimacy of judicial recognition of 'non-traditional' rights and cautions against a premature quest for national judicial rules," Dellinger said. [Link]