By Kermit Roosevelt
Posted Friday, May 1, 2009, at 7:00 PM ET
Few justices have been as consistently misunderstood as David Souter. Even at the end of his service on the Supreme Court, the conventional view is that he is a shy and bookish recluse, hiding from the modern world. This characterization misunderstands the man.
It has, of course, a grain of truth. Souter is bookish, and he is no great fan of modern gizmos or even basic tools. He does not use a computer or even a typewriter; I clerked for him during the court's 1999-2000 term, and I vividly remember trying to decipher his ornate longhand script. Once I went into his office for a discussion and found myself wandering about in the dark. Only after my eyes had adjusted could I make out the justice standing by the window with an open book, reading in the weak light that filtered through the glass.
It is not that Souter can't cope with modernity. When the Supreme Court considered a copyright case involving the latest file-sharing methods in 2005, Souter's opinion for a unanimous court showed a deep understanding of peer-to-peer Internet applications. It has won praise from both the legal and the high-tech communities.
Why would a man who can understand Grokster read by the window rather than turn on a light? Souter has a characteristic New England thriftiness and a distrust of luxury that verges on the spartan. He can keep a suit for decades, and he gently mocked me and my fellow clerks for wearing overcoats in the winter, claiming that his view was shared by that other great Yankee justice, Oliver Wendell Holmes. Souter is also deeply unpretentious. It would never occur to him that because he is a Supreme Court justice he's entitled to waste a bit of the taxpayers' electricity. (He once wrote me a note on a napkin I'd left on my desk rather than using a new sheet of paper.)
I suspect that Souter's down-to-earth humility is the source of much of his famed distaste for Washington, which seems to have finally gotten the better of him.
Talking to clerks, he always spoke without a sense of status or hierarchy, as one person or one mind to another. The fetish that Washington makes of position must have grated on him. In New Hampshire, his neighbors knew him as simply David Souter. I think he did not enjoy the fact that so many people in the capital found it far more important that he was a Supreme Court justice.
Certainly, it was not a lack of sociability that kept Souter on the outskirts of Washington society. When I arrived at the court, given what I had read about the man, I expected my interactions with him to be intellectually stimulating but interpersonally awkward. It was a surprise and a delight to learn how warm and witty he was. Nearly every afternoon he would emerge from his office to take a cup of coffee and chat with the clerks, and invariably he'd have us in stitches with some anecdote about New Hampshire or Oxford. His reunions are always well-attended, and I think there are few justices who command such filial affection from their clerks.
Souter has also been misunderstood as a judge. From the very beginning, partisans on both sides of the political spectrum projected onto him their hopes and fears. For the right, when President George H.W. Bush chose him, he was the stealth candidate whose lack of a paper trail would frustrate opposition but whose hidden political views would make him a "home run" for the conservative cause. For the left, he was the same thing. Demonstrators outside his confirmation hearings, fearing that he would prove a crucial vote to overturn Roe v. Wade, waved posters reading "Stop Souter, or Women Will Die." (Years later, we clerks found some of these on eBay and snapped them up as souvenirs.)
When Souter did not follow the narrative both sides had crafted for him, the left felt relieved and the right betrayed. He had lurched to the left, as a conservative judge once put it to me. Again, there is, of course, some truth to this story. On the court, Souter has voted mostly with the center-left justices in controversial cases, and his track record certainly does not follow the Republican Party platform.
But Souter's current position on the left wing of the court owes much more to movement by the court and the country than to any lurch on his part. The current court, after all, has seven Republican appointees and has been on a steady rightward drift since the Reagan years. The Republican Party has, too. I think Souter is indeed in many ways a Republican; it's just that his sort of Republican no longer really exists.
More important, Souter's performance on the court tracked his testimony during his confirmation hearings, for anyone who was paying close attention. Souter described himself as a cautious moderate, conservative in his distaste for drastic change and the importance he attached to precedent. On the controversial issue of the right to privacy, he described himself as a follower of Justice John Marshall Harlan, who wrote that constitutional due process of law includes protection against "all substantial arbitrary impositions and purposeless restraints." Souter believed that judges should not substitute their views of wise policy for those of the legislature but also that judges must play a meaningful role if legislative action becomes oppressive. It was not astonishing, then, when in the 1992 case Planned Parenthood v. Casey, he joined Justices Sandra Day O'Connor and Anthony Kennedy to reaffirm the central abortion-rights holding of Roe, basing his decision in significant part on respect for precedent.
Of course, other justices have sounded similar notes at their confirmation hearings and gone on to perform quite differently than promised. Souter's hearings, perhaps, offered a rather too handy template for what a justice seeking confirmation should say, regardless of his or her actual beliefs. Other nominees have promised humility and pledged their fealty to Justice Harlan, only to become wrecking balls once appointed. It is hard to escape the conclusion that one of Souter's distinguishing characteristics is his honesty.
That is something that the Supreme Court and the nation will miss. It will not be very hard to replace Souter's vote. Any Obama appointee will most likely vote roughly the same way, at least on the most contested issues that capture public attention. But it will be much harder to find someone with the same judicial temperament as Souter, the same open-mindedness, desire to learn, and willingness to take each case as it comes and reconsider past positions when necessary.
Souter was never an agenda-driven justice. If he had been, I think he would have stayed longer. With the replacement of just one conservative member of the court, Souter's frequent four-justice dissents, from the court's liberal-moderate wing, could have become majorities. I'd hoped he would stay long enough to see that happen. But I think he feels he has done his duty.
The comparable figure that comes to my mind is Cincinnatus, the Roman hero called to leadership who cast off his authority and returned home to his farm as soon as the crisis was past. Souter did not seek out his position, nor, it now seems clear, did he value it for its own sake. He did not go to the court to effect change; instead he did us a great service by resisting it. Reading the long and heated opinions in Casey, now, has something of the drama of a visit to Gettysburg. That was the closest the enemies of Roe came to overturning legal abortion. They came close indeed. But the charge fell short in the end, turned back by just a few people, Souter crucially among them, who found themselves in the right place at the right time. Some of the recent rulings limiting presidential power in the face of the Bush administration's protestations were 5-4 decisions as well; there, too, the vote of a single justice made the difference.
I am sorry to see Justice Souter go. The court will miss his intelligence, his integrity, and his humor. But he has earned his release, if that is what he wants. He leaves with his honor, and he should have our thanks as well.
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