It would appear from the latest news reports that Justice David Souter is about to part ways with the Supreme Court after a nineteen-year tenure. At the time of his nomination by President George H. W. Bush, David Souter was a virtual unknown. In his long career as a justice on the New Hampshire Supreme Court, a judge on the New Hampshire trial court, and New Hampshire’s attorney general, he seldom had occasion to express his views on controversial constitutional issues. Many critics of the nomination complained that President Bush had found a “stealth candidate” who had no “paper trail” but was secretly a rock-solid conservative determined to overturn Roe v. Wade and to outlaw affirmative action. It didn’t turn out quite that way.
Although at the time of his appointment Souter had little experience in constitutional adjudication, no one doubted his intellectual credentials. A Rhodes Scholar, Souter was a serious thinker, a prodigious reader, a hard worker, and a scrupulously careful lawyer. One public official in New Hampshire – a Democrat – described Souter as a 135 pound man, with “120 pounds of brain.” Before being tapped for the Supreme Court, he lived by himself in a ramshackle farmhouse filled with books. He lived a quiet, somewhat sheltered, contemplative life.
David Souter took the seat previously held by Justice William J. Brennan, Jr., one of the liberal lions of the Warren Court. Souter and Brennan formed a close and even touching friendship, and Brennan, ever the persuader, sought to share with his successor his own powerful vision of the unique responsibilities of the Supreme Court and the fundamental role of constitutional law in the American system of government.
We may never know what influence Brennan, then in his eighties, may have had on Justice Souter. What we do know is that Souter soon showed himself to be not the anticipated right-wing ideologue, but rather a thoughtful, moderate, independent thinker who sought to discern the central meaning of the Constitution. For David Souter, the Constitution was about the rule of law, shaped by a profound national commitment to fairness, justice, equality and individual dignity.
On issue after issue David Souter disappointed those who hoped he would be a Scalia sidekick. Souter rejected the rigid originalism and so-called “strict construction” of Robert Bork and former Attorney General Ed Meese in favor of a more textured commitment to the core values of our Constitution. In case after case, Souter parted company with Justices like Scalia, Rehnquist and Thomas, and made for himself a truly distinguished and surprisingly “liberal” record on such issues as freedom of religion, freedom of speech, due process, search and seizure, racial and gender equality, affirmative action, the rights of gays and lesbians, executive power, cruel and unusual punishment, abortion, and the rights of persons accused of crime. A man of deep civility and understatement, his opinions are soft-spoken and gentle, but they resonate with conviction. His opinions are precise, nuanced, and carefully reasoned. There is no bombast, sarcasm or disrespect in David Souter.
I just said that Souter has a “liberal” record, but that is not true. Souter has often appeared to be a “liberal.” But appearances are deceiving. Against the background of his brethren – most notably Rehnquist, Scalia, Thomas, Kennedy, Roberts and Alito – Souter is clearly on the more liberal side of the Court on most controversial issues. But as I’m sure David Souter would himself acknowledge, he is no William Brennan or Earl Warren. He is, in fact, a moderate. But because the majority of the colleagues against whom he is judged are among the most ideologically conservative justices to serve in the past seventy-five years, he appears to be “liberal.”
It is an old saw that Supreme Court justices often seem to get more “liberal” over time. This was arguably true, for example, of Lewis Powell, Harry Blackmun, Sandra Day O’Connor, and John Paul Stevens, to name only a few. In fact, I think this is a real phenomenon. Those justices who are not rigidly affixed to a particular ideology do tend over the years to drift to the left. This was also true of David Souter.
Why does this happen? My theory is that as justices from widely diverse backgrounds see the endless stream of cases that flow to the Court, they come gradually to appreciate more deeply the injustices that still exist in our society and they come to better understand the unique role and responsibility of the Supreme Court in addressing those injustices.
It is the more open-minded justices, those who can reassess their beliefs, empathize with the outsiders in our society, and learn to appreciate the distinctive capacity of the judiciary to enforce the guarantees of our Constitution, who grow in the depth of their understanding of their responsibilities. David Souter was one of those justices.
It is no secret that David Souter was not always happy as a Supreme Court justice. He was often disappointed in his colleagues, most especially for their decision in Bush v. Gore, which he regarded as a “tragedy.” He never warmed to the social whirl and glitz of the nation’s capital, and he certainly missed the simplicity and calm of his New Hampshire farmhouse. But he also felt deeply privileged to serve on the Supreme Court. He once told me that he regarded himself as “the luckiest guy in the world” because of the opportunity he had in this way to serve his country.
David Souter has all the qualities of a great Justice. He is a voice of reason. He is decent, thoughtful, brilliant, caring, and modest. During his tenure on the Court, he has grown steadily both as a man and as a justice. He has thought hard about the ways in which the law touches individual lives and he has preserved and protected the fundamental principles of liberty, equality and democracy upon which our nation is based. Justice Brennan would be proud of him.
(also published at the Huffington Post)