One of the diminishing pleasures of hearing that the Supreme Court has issued a new opinion is the hope and anticipation that a majority–or, better yet a dissent–has been written by Associate Justice David H. Souter. The prospect–so far not wholly definitive–that Justice Souter plans to retire at the close of the Court’s term this summer robs Court-watchers of a special consolation and quiet joy of that reading. It takes from the Court a Justice who has quietly and diligently mined the law to return history and humanity to a constitutional jurisprudence increasing bereft of these qualities. I, for one, hope not for an exciting confirmation process; I hope, against reasonable expectation, that the Justice changes his mind.
If he does not, President Obama could do much worse than look to qualities that characterize Justice Souter’s jurisprudence–humanity and history–as well as the qualities of his predecessor, Justice William J. Brennan Jr. It is those qualities, rather than any list of constitutional hot-button issues, that should guide a selection now.
In the coming debate, I suspect that on both sides of the political divide will succumb to the temptation to focus on Justice Souter’s early vote in the 1992 abortion case of Planned Parenthood of Pennsylvania v. Casey, not yet two years after his arrival at the Court. Confounding the expectations of the president who appointed him, George H. W. Bush, Souter, along with Justice Sandra Day O’Connor, famously persuaded the ever-wavering Anthony Kennedy to update a “core” of Roe v. Wade against overruling.
Souter remains committed to this position, unlike the fickle Kennedy, who recently endorsed regulation of so-called “partial birth” abortion based on condescending and faintly misogynistic fantasies of female frailty and irrationality in Gonzales v. Carhart. In that case, Justice Souter joined the caustic and devastating dissent filed by Justice Ruth Bader Ginsburg.
But Justice Souter’s position on abortion is not the most important characteristic of his time at the Court. Rather, his opinions have been characterized by sensitivity to both humanity and history that increasing escapes a Court committed to legal formalisms and a purblind sense of our nation’s trajectory. Echoing Justice John Marshall Harlan, whom Souter invoked in his confirmation hearing as a model, Souter has proved tolerant and open-minded about the world’s complexities and the difficulties of fitting constitutional norms to today’s realities. He has shown a deep respect for the legal process and the Court’s decisions that other Justices, rushing recently to remake the law of racial equality and campaign finance, have disdained.
Reading a Souter opinion is quite unlike working through a Scalia or Kennedy opus. Unlike many of his colleagues, Souter never labors under the false burden of certainty. His opinions recognize the conflicting tugs of policy that pull different ways in every difficult case. He is frank about the risks of deciding either way, and honest about his reasons for reaching his result–especially when it comes to the influence of history and humanity. For all the rhetoric of “judicial modesty” to be heard today, Justice Souter’s frank recognition of the limits of reason, like his careful attention to the arguments and concerns of others, are an ignored model of that virtue.
My favorite example is his concurring opinion in the landmark case of Hamdi v. Rumsfeld, one of the first “enemy combatant” decisions filed by the Court. More than any other opinion, Souter’s is alive to the perils not only from Al Qaeda but from an executive branch that, left alone to defend national security, will fail systematically to account for other values in that pursuit. More than other Justices who would have taken a more absolutist civil-libertarian position, Souter registers the human costs of prolonged detention. And parsing the history of wartime abuses, Souter crafts a more persuasive account of the resolution our nation has reached when liberty and security seem in tension.