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.
Equally persuasive, and pleasurable to read, is the series of dissenting views that Justice Souter has filed in so-called “federalism” cases, in which the Rehnquist Court crafted ex nihilo new constraints on Congress’s power under both the original constitutional and Reconstruction-era amendments to remedy state-level discrimination. In opinions alive to the travails of discrimination’s victims, Souter traces a convincing account of our national commitment against the subordination of others. In an era in which Justices can blandly claim to see no difference between Jim Crow and affirmative action, this lively awareness will be sorely missed.
Rather than cede the ground of “original meaning,” Justice Souter has filed persuasive accounts of constitutional origins to rebut the reductionist offerings of Justice Scalia in particular. In the school prayer case of Lee v. Weisman, Souter wrote a compelling rebuttal of Scalia’s account of the origins of the Religion Clause that will long merit study.
Modesty means that Justice Souter has not obtained the high public profile of some of his peers. Souter has not leveraged his position at the nation’s legal apex as have fellow Justices who moonlight as memorialists. Souter even declined to speak with political scientist Tinsley E. Yarbrough, who wrote a biography of the Justice. His response to the prospect of cameras in the High Court? “The day you see a camera come into our courtroom, it’s going to roll over my dead body.”
His closest brush with fame was a venal (and thankfully failed) attempt by conservative activists to seize his family home in East Weare, New Hampshire, as a protest of the Supreme Court’s decision in Kelo v. New London on the Takings Clause. It apparently escaped the attention of the protesters that the Souter family had lost land to a “taking” in the 1950s. That did not stop Souter from reading the constitution as he believed it ought to be understood in Kelo.
Justice Souter has written of how much he was influenced by his predecessor at the Court, Justice Brennan. It appears that Souter never quite had Brennan’s facility of negotiating his way to a winning compromise. And President Obama, in considering his first Supreme Court pick, might want to recall how important the will to charm and flatter can be in assembling successful majorities on the Court. The liberal wing of the Court will need not only Justice Souter’s self-effacing yet prodigious intellect and his evident humanity, but also something of Justice Brennan’s bonhomie and strategic wiles.
In his eulogy to Justice Brennan, Justice Souter spoke of his successor as a judge who “made us out to be better than we were.” Justice Souter’s opinions, in their careful awareness of lived history and their sensitivity to the human condition’s foibles and temptations, did the same. I, for one, will miss them a lot. It is now up to President Obama to find someone who can fill those large shoes, and show us once again the dignity and human value that can be mined from our Constitution.