David Souter

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)

Comments

[BCrago66]

There's a ratio of around 20 laudatory adjectives applied to Justice Souter & his jurisprudence, to 0 written opinions cited as examples. That's the most prominent and telling take-way from Geoffrey Stone's post. And what examples could Mr. Stone cite? None come to mind; certainly not the joint opinion in Casey. That opinion is not noted for its constitutional depth or analytical rigor, even among those who favor its result.

It is interesting, however, to see Mr. Stone's explanation of the Greenhouse Effect, i.e., the tendency of many Justices to get more liberal. The Effect, says Stone, is due to the inherent virtue of its carriers, when confronted over the years with many examples of injustice. This theory has the great advantage of feeding the vanity of those to whom it is applied, and of anyone else on the Left side of the political spectrum, e.g., Mr. Stone. It's much more satisfying than the original explanation of DC Circuit Court Judge Lawrence Silberman, which is that some judges like to make stuff up in order to conform to elite opinion.

[Uzair Kayani]

It is unfair to characterize Justice Souter as overly political or liberal.

For example, in Hurley v. Irish American, Lesbian, and Bisexual Group of Boston, 515 US 557 (1995), he upheld the Boston St. Patrick's Day Parade's right to exclude Irish American, Lesbian, and Bisexual group (IALB) members from its gathering. The theory was that the presence of IALB members interfered with the parade's message and so infringed the parade members' First Amendment rights. The case came out this way even though it is unclear what the parade's message was; there were a host of banner carriers with various messages involved. This decision may be liberal in the general sense that it strengthens Free Speech doctrine (so that gatherings can choose what *not* to say) but it is certainly not liberal in the political sense. It may even be conservative insofar as it diminished political speech by denying a marginalized group a forum that was available to many other groups. Justice Souter suggested that Massachusetts had the purpose of promoting a particular message (acceptance of IALB) and found that it could not do this by infringing the parade members' speech rights.

In the Grokster case, Justice Souter apparently cut against the earlier Sony decision by holding that the developer of file-sharing software may be liable for contributory infringement of copyright because the developer had *induced* users to share files illegally. This is a key pro intellectual property rights decision. It would never be characterized as politically liberal.

On the other hand, in McCreary County v. ACLU, 545 US 844 (2005), Justice Souter ruled that a couple of prominent displays of the Ten Commandments that were sponsored by the Kentucky government violated the Establishment Clause. There, Justice Souter reaffirmed purposive interpretation of statutes because he suspected that strict textualism would do away with the Lemon Test and various other bedrocks of constitutional law. He wrote: “Examination of purpose is a staple of statutory interpretation that makes up the daily fare of every appellate court in the country and governmental purpose is a key element of a good deal of constitutional doctrine. With enquiries into purpose this common, if they were nothing but hunts for mares’ nests deflecting attention from bare judicial will, the whole notion of purpose in law would have dropped into disrepute long ago. But scrutinizing purpose does make practical sense, as in Establishment Clause analysis, where an understanding of official objective emerges from readily discoverable fact, without any judicial psychoanalysis of a drafter’s heart of hearts.”

People seem to become "liberals" these days by not changing at all.

[bobf]

Coincidentally, there's some talk that the federal judge and former lawyer at Covington & Burling who apparently threw out a civil lawsuit by Superior Bank despositors against former Obama National Campaign Finance Chair and Superior Bank board member Penny Pritzker, Diane Paula Wood, will be replacing Souter on the Supreme Court bench.

And, coincidentally, when U.S. Attorney General Eric Holder worked at Covington & Burling, Covington & Burling represented Penny Pritzker's Superior Bank/Coast-to-Coast Financial Corporation before federal regulators.

In addition the Pritzker family that owned Superior Bank before it collapsed in 2001, following its engagement in reckless sub-prime mortgage lending, gave $30 million to the same University of Chicago which has employed federal judge Wood in recent years.

Aren't potential U.S. Supreme Court justices supposed to be free of such apparent conflicts-of-interest issues?

Did Souter have any similar conflicts-of-interest issues that had to be looked into before he was appointed to the U.S. Supreme Court bench?

[Ethan Stanislawski]

Since Obama was an adjunct at University of Chicago Law School, do you think if he were to appoint someone from the U of C, it would be criticized as a Harriet Miers-like decision regardless of ideology?

My guess is if it was a U of C person perceived as too "left-wing", it will be criticized on the right as a Bush-like move, just as it would by the left if it was someone seen too moderate or conservative.

It's sad to think that political pressure would box out most, if not all, of supremely qualified minds from the University of Chicago Law School.