A justice of genuine modesty and self-restraint
Souter’s legacy brings home the shortcomings with the current Supreme Court
Justice David Souter died last week at the age of 85. His tenure, temperament, and approach to judging stand in marked contrast to—and as rebukes of—today’s more polarized, brassy, and unpopular Supreme Court, with all that portends for our democracy.
1.
The capsule description of Souter likely will remain: the justice who disappointed his Republican sponsors and moved left on the Court. The argument is, at best, overstated.
Souter’s patrons as he advanced through New Hampshire and the federal courts were all Republican. He was appointed by Republicans to be New Hampshire Attorney General, associate justice of the New Hampshire Superior Court, and to the U.S. Court of Appeals for the First Circuit.
John Sununu was the White House Chief of Staff under President George H.W. Bush when Souter was nominated to the Court. Republicans at the time (and before and since) were looking for a carbon copy of Justice Antonin Scalia. Sununu vouched for Souter, famously describing him as a "home run” for the conservative legal movement. (When Souter voted with the majority in Lee v. Weisman in 1992 to strike down clergy-led prayer at public high school graduations, a conservative friend of mine was quoted as saying, "[T]he posse is out looking for John Sununu.”)
But Souter himself was always strictly nonpartisan. When he was nominated, I perused his First Circuit opinions and a smattering of the state decisions, and I concluded he was a thoughtful gradualist who applied precedent faithfully and was mindful of the impact of the Court’s decisions on the people’s sense of justice. What more could you hope for from a nominee of a Republican president?
2.
The conservative case against Souter rests primarily with the joint opinion that he authored with Justices Kennedy and O'Connor reaffirming Roe v. Wade in a case—Planned Parenthood of Southeastern Pa. v. Casey—where it was widely considered to be on the chopping block.
It's common knowledge that Souter wrote the stare decisis, or respect for precedent, section of the joint opinion. The section marches through the various accepted factors for evaluating whether to overrule a precedent, such as whether it has proven workable (Roe had, according to the opinion) and whether it had generated social reliance (ditto).
But Souter then drew out a broader lesson, appropriate for Roe’s rare and contentious status. He declaimed on the source of the Court’s power, which derives from “the people’s acceptance of the judiciary as fit to determine what the nation's law means and to declare what it demands.” Thus, he concluded, “the Court’s legitimacy depends on making legally principled decisions under circumstances in which their principal character is sufficiently plausible to be accepted by the nation.”
Contrast this treatment with the dismissive and contemptuous approach of Justice Alito, the author of the majority opinion in Dobbs v. Jackson Women’s Health Organization, overruling Roe. The opinion leaves itself open to scathing criticism by the dissent on precisely the issue of stare decisis, which the dissent argues forcefully is a “cavalier approach.”
Stare decisis, they continue, “is a doctrine of judicial modesty and humility. These qualities are not evident in today’s opinion.” What’s left, the dissent argues, is a substitution of “a rule by judges for the rule of law[:] The majority has overruled Roe and Casey for one and only one reason: because it has always despised them, and now it has the votes to discard them.”
I don't want to re-litigate the merits of the Dobbs decision in this dispatch. The point, rather, is to contrast the qualities of Souter—especially in the decision that cemented his unfavorable reputation on the right—with those of the current majority. Which is the more cautious? Which is the more attentive to the Court’s need for the people’s confidence? Which is the more, in a word, conservative?
And is it just a coincidence that when Souter left the Court, public trust in the institution was 50–60%, whereas it now has plummeted to a record low of 35%?
It is true that in his career Souter voted primarily with the Court’s liberal bloc. But that doesn't support the thesis that he moved left. Equally important are two factors. First, the Court itself moved right with the appointments of Clarence Thomas, John Roberts, and Alito (as well as Democratic centrists Ruth Ginsburg and Stephen Breyer). Second, as Supreme Court justice, Souter had greater authority to vote according to his own views, rather than the dictates of precedent that more strictly bind a lower court.
None of this is to dispute Souter’s reputation within legal circles as a moderate-left justice. That will remain. But the chief talking point on the right—that he lurched to the liberals after joining the Court—doesn’t hold up.
3.
Souter didn't spend his life angling to be a Supreme Court justice, and he didn't particularly like the job. He was an old-fashioned New Englander through and through, who far preferred reading or hiking in solitude in the New Hampshire mountains to hobnobbing at State Department dinners.
He seemed, on the one hand, to have been a person of incredible Yankee virtue but also not quite a man of his time. He had the same yogurt and apple for lunch every day. He didn’t have a cell phone. He had no sense of popular culture and supposedly permitted his clerks to recommend one movie for him to see each year. He retired from the Court, apparently with great relief, at the relatively baby age of 69. His clerks invariably testify to his kindness and charm. I can echo that assessment from my relatively limited times in his presence, including at the Third Circuit conference where he was Circuit Justice.
There is a story that fits snugly with these characterizations and has always struck me as unbelievably impressive. When an execution is scheduled—typically in the wee hours—it generates in the Supreme Court a sort of relay race of efforts by the condemned to persuade a series of justices to take the case and stay the execution. I worked on those cases as a Marshall clerk. Marshall was most likely to vote in favor of the condemned, and therefore more moderate justices would wait to see what Marshall and Brennan had to say. Likewise, more conservative justices would wait to see if any among their colleagues would perceive the very unusual instance of a meritorious claim.
Souter refused to go along with this approach. Rather, he closed his door and instructed his clerks not to relay to him the votes from the other justices. He took his responsibility so seriously that he didn't want to be influenced by the rolling determinations of the others.
That, to my mind, was a sign of near-incredible integrity.
4.
In the last 40 to 45 years—roughly coinciding with the Reagan administration and its deliberate appointment of conservative judges—there has been a sort of dialectic of jurisprudential approaches in this country. Different administrations and Senates have interrogated nominees about their judicial philosophies. They, in turn, have offered up different views in which factors such as “original meaning” are seen as the fountainhead of the judicial craft.
Souter was constitutionally opposed to such reductionist approaches. He resisted what he called the “fairy tale” of a mechanistic approach to a single obvious meaning of constitutional provisions. His jurisprudence, like his person, had a distinct humility.
Souter delivered a rare public address at the Harvard commencement shortly after his retirement. In an implicit rebuke of Chief Justice Roberts’s comparison of a judge to a baseball umpire, Souter rejected what he called “the simplistic view of judging” as a “distortion, not a description, of what judges do.” He explained that the Constitution contains “values that may pull in different directions” and require choices grounded in “the explicit terms of the Constitution... [that] require choices between one constitutional value and another.” Those choices, necessarily, are grounded in moral and intellectual judgment, not simple talismans such as original intent.
And, as always, he aligned his opinions with the broader mission of the Court’s place in a democracy. He argued that it undermined public understanding and confidence in the judiciary to aver that the law could be reduced to a fixed meaning divorced from moral and social considerations.
Souter’s judicial hero in many ways was Judge Learned Hand. In his Harvard address, Souter told the students that if he could, he would require all the judges in America to read the well-known Gerald Gunther biography of Hand. Souter quoted Hand’s reference to Oliver Cromwell’s plea to the Scots: “I beseech you, in the bowels of Christ, think it possible you may be mistaken.”
Most famously, and characteristically, Souter’s commencement address quoted Hand’s famous paean to judicial modesty: “the spirit of liberty [is] the spirit that is not too sure it is right.”
5.
Souter was probably the least recognized and most reserved member of the Court during his tenure. A well-known illustration of his modesty and dry wit came when someone took him for Justice Breyer and asked him the best thing about being on the Supreme Court. He remarked, "Serving with Justice Souter."
It's easy to caricature his old-world ways and make him out to be a kind of fuddy-duddy. He wasn't. A Rhodes Scholar coming out of Harvard, he was an accomplished runner, an opera buff, and an avid reader of history in particular. He was a socially comfortable, witty man much sought after on the Washington dinner party circuit. He just never liked it all that much.
Souter ended his Harvard commencement address on a stirring, hopeful note—an invocation of trust: trust between the Framers and the current Court, trust between the current Court and the people. Acknowledging the impossibility of sharing every intellectual assumption of the Framers, Souter declared:
"We can still address the constitutional uncertainty the way they must have envisioned, by relying on reason that respects the words the Framers wrote, by facing facts, and by seeking to understand their meaning for the living... That is how a judge lives in the state of trust, and I know of no other way to make good on the aspirations that tell us who we are, and who we mean to be, as the people of the United States."
Souter was a virtuous man in a vicious town, and a bona fide judicial conservative on a Court that, since he left it, has fallen in self-restraint and public confidence. His humility, restraint, and humanity set him apart from many members of the current Court. Neither the Court nor the rest of us have profited from the exchange.
Contemplating his passing, I think of Antony’s eulogy for Brutus, with a slight twist at the end:
His life was gentle, and the elements
So mixed in him that Nature might stand up
And say to all the world, "This was a judge."
Talk to you later.
A beautiful eulogy to an admirable Justice!
Thank you!
Thank you for this brief bio. What a shame that our current situation is so foreign to who he was!