Justice Souter: Homeward Bound
Originally posted at msnbc.com
David Hackett Souter is not of this world. At least not the world many of us living in this nation's population centers experience on a daily basis in 2009.
His intellect is the stuff of folklore, and so is his personal life. He's been described as an almost Victorian figure, straining to maintain the lifestyle he prefers while the world changes around him. That he drives an automobile remains something of a wonder -- his concession to changes in modern transportation -- given that other aspects of his life and mindset seem borrowed from another century, and not the last one.
Souter was to President George H.W. Bush what Justice William Brennan was to President Eisenhower. Bush wanted a predictable conservative jurist without a paper trail. He got half of that, just as Ike did when trying to select a solid judge who agreed with his philosophy.
Immediately after his appointment to the court, those who ventured to Weare, New Hampshire in search of clues that would shed light on the nominee found a rather dark cabin filled with books. Stacks of them.
Peering through the windows as reporters do, they could not see a television inside the house. There wasn't one. There wasn't anything David Souter needed to know that he couldn't read about, or so the theory went.
Washington journalists, in requisite khakis and blazers, braved the blazing summer heat of New Hampshire to gather information on the taciturn, enigmatic, intellectual New Englander.
Former high school classmates talked guardedly about their bookish, smart friend with the throwback charm. I was among those who read all of his available opinions to date back then, and I decided my favorite was the case, as I remember it, of the hippie couple who sued New Hampshire because they didn't feel they should be forced to ride around in their van fitted with license plates bearing the New Hampshire State slogan, "Live Free Or Die." They lost.
It didn't take long to realize President Bush had lost a big bet.
He'd been famously assured by then-Republican Senator John Sununu of New Hampshire that Souter would be a "home run" for the right, a lock-cinch, dependable Yankee conservative on the court. Souter morphed before their eyes into a Yankee liberal -- or what passed for one, as the court was in the middle of a decided right turn during the Souter years. Bush's other pick, Clarence Thomas, did not disappoint.
Years later, Souter was reported to be profoundly disappointed at the Court's decision in Bush v. Gore, which effectively awarded the election to the son of the man who appointed him to the court. He was part of the four Justices in the minority.
During the Court term, Justice Souter works 12 hour days and lives in a small apartment not far from the Court. He has never liked the city.
For that matter, he's never been much for computers, cell phones or other trappings of modern life. He writes his opinions longhand, in fountain pen, as John Marshall did in the early days of the Republic.
Meantime, back in the electronic world of 2009 America, an internet headline on a major website, posted within hours of the first report that he was retiring, breathlessly and incorrectly reported that Souter's departure will lead to a "shakeup" on the court.
Because Souter must be considered a dependable member of the court's left-of-center minority, President Obama's choice to replace him will not amount to any sort of net gain for the left -- nor would replacements for what are generally considered to be the next two justices to depart, Stevens and Ginsburg.
But the quiet man from New Hampshire has accomplished one thing with his planned departure: he's proven once again that attempts to predict the behavior of the court and its justices can be a dicey business.
Perhaps it all goes back to "Live Free Or Die." When David Souter aims his car north to his beloved New Hampshire at the end of the court term, he will be, entering his eighth decade, a free man.
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Re: "He writes his opinions longhand, in fountain pen, as John Marshall did in
the early days of the Republic."
Check your facts, Brian -- in the early days of the Republic, fountain pens did not yet exist. John Marshall lived and died before the invention of the fountain pen: he wrote by dipping a trimmed feather into ink.
Kate Gladstone
handwriting historian/
handwriting columnist, THE PENNANT (the quarterly magazine of the Pen Collectors of America)
Kate is quite right. The fountain pen is a late 19th century invention. Marshall used a dip pen.
I have to disagree that Souter "morphed" into a Liberal. He's the same as he always was, "a dependable Yankee Conservati
I'm sure that most of us commenting on Judge Souter's reason(s) for resigning from the court have no solid evidence for why he is choosing to do so. Accordingly, I have a reason, no more trustworthy than any other I have read and here it is: He is just fed up with trying listening to the convoluted and prejudiced thinking of the likes of Roberts, Alito, Scalia, & Co. Example of such thinking Bush vs Gore.
I know no one, except Justice Souter, knows the real reason why he has chosen to retire. I do, however, find the reason you suggested to be quite plausible. I understand Scalia is reputed to be a great intellect but find most of his decisions to be propaganda for the right. It used to be amusing when it was mainly Scalia and Thomas but with the addition of Roberts and Alito, who now and then get Kennedy's support, the Court has increasingly become a mouthpiece not for real conservatives but for far right conservatives. That is why they are gearing up to oppose any sane justice nominated by Obama.
I do wish Thomas would resign. Ugh.
That Bush the First found a black right winger to appoint was a political masterstroke for the right, but that guy harbors a lot of anger.
Bad choice. But maybe he will find a reason to quit and return to Missouri. :)
Souter IS conservative - but of the extinct species, the type with a conscience.
19 years of government service is more than ample proof of one's character and proof in their love of country and patriotic duty. Well done Justice Souter. Its a shame that there aren't more public [private and corporate] figures like you. The self-aggrandizing ideologs who sit with you on the bench have a lot to learn from you. In fact, we all would be better off if we were reserved, modest, quiet, thoughtful; even bookish – all the adjectives used to describe you. You gave 19 years of service, may God grant you another 19 years to do as you would have had you not devoted the last 19 to government service. Thank you!
Thank u Brian for this thoughtful tribute to Judge Souter. I will always have deep admiration for him for the simple fact that he stayed on for as long as he did. I also want to commend u for voicing ur opinion on the AF1 Affair earlier in the week. It must have been difficult b/c of ur role but u handled it with ur usual class. Thx.
Best of luck to you, Justice Souter, and thanks for waiting until a sane person occupied the White House.
good point!
Good comment!
Best thing he's done for his country!
Thank you Justice Souter, for being your own man with the courage to think for yourself and for respecting precedent. Americans can't ask for more than that and I hope President Obama finds someone else who is able to fill your shoes.
We need more Souters; independent thinkers regardless of party.
I've never understood why 5/4 was considered a majority for the highest cout of the land. Even Congress needs, in most cases, 60 of the 100 available votes to pass legislation. Had the majority needed been 6/3 just think how different the last 8 years would have been.
I also think there should be an age limit. Once upon a decade 65 was the mandatory retirement age in many industries. That's gone the way of the dodo in most companies, but I think 80 should be the cut off for a Supreme.
That's discrimination.
Times change. Interpretations change. Old folks should be retiring and enjoying their golden years, not deliberating on the rights and freedoms of people several decades younger than them.
While imposition of a mandatory retirement age may make sense for airline pilots, it does not for Supreme Court justices. For the former, motor skills, reflexes, etc. can be crucial. For the latter, wisdom, patience, and focus are more important. Also, with only 9 justices, there's no need to paint with such a broad brush. All that being said, however, if I were on the Court, I'd hope to have the integrity to step aside when I could not longer work at an acceptable level.
Regarding your point about requiring a 6-3 majority, you overlook the fact that courts, unlike legislatures, are reviewing decisions made by others. Your suggestion would simply make lower court decisions (which are also decided by simply majorities) less reversible.
Age really has nothing to do with being a wise justice, and sometimes age and experience are quite beneficial. I would take Justice Stephens intellect and wisdom over those of the younger Roberts and Thomas who are simply promoting the right wing Agenda.
No it is easy to predict. the behavior of anyone appointed by the machine. They will distract us with arguments over trivia while all the time appointing judges that reduce the rights of the people.
I hope that he just doesn't become a hermit in a cabin, that he perhaps becomes a visiting professor at law schools, perhaps in the New England region. I am quite sure he could be a valuable addition to the education of law students, I do suspect he will write a book on his life in law and the Supreme Court and become a (writing) commentator on the law in America.
Bon voyage and thanks for the service.
About a year ago, I saw an interview with Justice Stevens on TV. To many people's surprise, he said that despite his reputation for being a liberal, he still considered himself to be a Republican. The fact is that Justice Stevens seems to be a liberal because the court is so conservative.
Now imagine someone as liberal as Keith Olberman being appointed Chief Justice of the Supreme Court. He would be so liberal, communistic and radical that it would be the French Revolution all over again. It would be a foreshadowing of the collapse of the universe, and even the multi-verse. Universes would be collapsing onto universes creating infinite chaos and destruction. That's how conservative the Supreme Court is, but we don't think of it conseverative because that's what we are use to.
The law is inheritly conservative but in the small "c" conservative sernse. Judges are cautious and careful by trianing and instict. So judicial liberals aren't that Liberal and judicial conservatives aren't that Conservative. So all of us should relax a little bit no matter our political persuasion.
Though your comments sound nice, they fly in the face of evidence. There is a substantial difference between, say, a Scalia and a Ginsburg. Or even a Kennedy and a Souter.
Laws are passed or overturned based often on just 1 vote, and the 4 large "C" conservatives predictably fall on the same side of pretty much every important decision.
I'd say this nomination is pretty damn important.
I read in an American Constitutional Society Article (Although I admit the ACS is a liberal organization) that conservatives really have made picking right-wing Justices a science and that they now make few mistakes. From on now, Republican presidents will make few judicial appointment errors. Since I don't have the article with me, I can't tell you the specifics of the methodology that they use. But it has something to do with with a judicial nominee's types of social groups he or she associates with. For example, judicial nominees who were insiders in past Republican administrations tend to be very reliable conservatives once they get on the bench. Of course, because there is uncertainty, mistakes will always be made. But for the most part, the last five of six Republican nominees voted as conservative Republicans (Yes, even O'Connor is a conservative to moderate GOP! She just seems centrist because the Court is so conservative). Had Bush gotten Bork confirmed, that record would be six for six.
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