It would appear from the latest news reports that Justice David Souter is about to part ways with the Supreme Court after a nineteen-year tenure. At the time of his nomination by President George H. W. Bush, David Souter was a virtual unknown. In his long career as a justice on the New Hampshire Supreme Court, a judge on the New Hampshire trial court, and New Hampshire's attorney general, he seldom had occasion to express his views on controversial constitutional issues. Many critics of the nomination complained that President Bush had found a "stealth candidate" who had no "paper trail" but was secretly a rock-solid conservative determined to overturn Roe v. Wade and to outlaw affirmative action. It didn't turn out quite that way.
Although at the time of his appointment Souter had little experience in constitutional adjudication, no one doubted his intellectual credentials. A Rhodes Scholar, Souter was a serious thinker, a prodigious reader, a hard worker, and a scrupulously careful lawyer. One public official in New Hampshire - a Democrat - described Souter as a 135 pound man, with "120 pounds of brain." Before being tapped for the Supreme Court, he lived by himself in a ramshackle farmhouse filled with books. He lived a quiet, somewhat sheltered, contemplative life.
David Souter took the seat previously held by Justice William J. Brennan, Jr., one of the liberal lions of the Warren Court. Souter and Brennan formed a close and even touching friendship, and Brennan, ever the persuader, sought to share with his successor his own powerful vision of the unique responsibilities of the Supreme Court and the fundamental role of constitutional law in the American system of government.
We may never know what influence Brennan, then in his eighties, may have had on Justice Souter. What we do know is that Souter soon showed himself to be not the anticipated right-wing ideologue, but rather a thoughtful, moderate, independent thinker who sought to discern the central meaning of the Constitution. For David Souter, the Constitution was about the rule of law, shaped by a profound national commitment to fairness, justice, equality and individual dignity.
On issue after issue David Souter disappointed those who hoped he would be a Scalia sidekick. Souter rejected the rigid originalism and so-called "strict construction" of Robert Bork and former Attorney General Ed Meese in favor of a more textured commitment to the core values of our Constitution. In case after case, Souter parted company with Justices like Scalia, Rehnquist and Thomas, and made for himself a truly distinguished and surprisingly "liberal" record on such issues as freedom of religion, freedom of speech, due process, search and seizure, racial and gender equality, affirmative action, the rights of gays and lesbians, executive power, cruel and unusual punishment, abortion, and the rights of persons accused of crime. A man of deep civility and understatement, his opinions are soft-spoken and gentle, but they resonate with conviction. His opinions are precise, nuanced, and carefully reasoned. There is no bombast, sarcasm or disrespect in David Souter.
I just said that Souter has a "liberal" record, but that is not quite true. Souter has often appeared to be a "liberal." But appearances are deceiving. Against the background of his brethren - most notably Rehnquist, Scalia, Thomas, Kennedy, Roberts and Alito - Souter is clearly on the more liberal side of the Court on most controversial issues. But as I'm sure David Souter would himself acknowledge, he is no William Brennan or Earl Warren. He is, in fact, a moderate. But because the majority of the colleagues against whom he is judged are among the most ideologically conservative justices to serve in the past seventy-five years, he appears to be "liberal."
It is an old saw that Supreme Court justices often seem to get more "liberal" over time. This was arguably true, for example, of Lewis Powell, Harry Blackmun, Sandra Day O'Connor, and John Paul Stevens, to name only a few. In fact, I think this is a real phenomenon. Those justices who are not rigidly affixed to a particular ideology do tend over the years to drift to the left. This was also true of David Souter.
Why does this happen? My theory is that as justices from widely diverse backgrounds see the endless stream of cases that flow to the Court, they come gradually to appreciate more deeply the injustices that still exist in our society and they come to better understand the unique role and responsibility of the Supreme Court in addressing those injustices.
It is the more open-minded justices, those who can reassess their beliefs, empathize with the outsiders in our society, and learn to appreciate the distinctive capacity of the judiciary to enforce the guarantees of our Constitution, who grow in the depth of their understanding of their responsibilities. David Souter was one of those justices.
It is no secret that David Souter was not always happy as a Supreme Court justice. He was often disappointed in his colleagues, most especially for their decision in Bush v. Gore, which he regarded as a "tragedy." He never warmed to the social whirl and glitz of the nation's capital, and he certainly missed the simplicity and calm of his New Hampshire farmhouse. But he also felt deeply privileged to serve on the Supreme Court. He once told me that he regarded himself as "the luckiest guy in the world" because of the opportunity he had in this way to serve his country.
David Souter has all the qualities of a great justice. He is a voice of reason. He is decent, thoughtful, brilliant, caring, and modest. During his tenure on the Court, he has grown steadily both as a man and as a justice. He has thought hard about the ways in which the law touches individual lives and he has preserved and protected the fundamental principles of liberty, equality and democracy upon which our nation is based. Justice Brennan would be proud of him.
Read about new choice here: http://www.bigtamasha.com/2009/05/afraid-of-financial-wizards-senate.html
The conservative make up of the Supreme Court is taking us back to the Dark Ages, their decision to appoint a Republican president; overruling the FL Supreme Court was a disgrace to democracy.
Obama has to be very careful in his selection of a replacement for Souter, a moderate that could occasionally vote with the anti intellectual religious conservatives might be a big setback for progressives in this country.
Souter was okay but we need another strong advocate for the people, justices like William O Douglas or even Ruth Bader Ginsburg.
I confess to having been one of those who thought that Justice Souter would be yet another ideologically driven conservative judge whose vote would reverse the progress that had been made toward protecting women's rights. I was chastened and delighted to discover how wrong I was.
You are, of course, correct about where Justice Souter stood on the "liberal" to "conservative" continuum. The talking heads who identify him as "liberal" or a "left-wing extremist" tell us nothing about him but a lot about their own bias and short memory. I came to respect and admire him during his tenure on the Court, but developed a deep empathy when his reaction to the result and "rationale" in Bush v. Gore became known.
I continue to believe that the present Court needs several genuine liberals to counterbalance the conservative ideologues who continue to sit, but suspect that we might be best served by an entire Court of judges who share Justice Souter's qualities of mind, temperament and jurisprudential principles.
Thanks to him, the government can take any American's property for practically any reason.
A little balance in your assessment would have been welcome.
Name an important opinion written by Souter. He's a milquetoast.
You have a very odd idea of what makes a good Supreme Court Justice. Guess you didn't actually learn anything from Prof. Levi -- or Prof. Stone, either.
To listen to Scalia and his team, which is the only way I can think of them, is to hear men who believe these forefathers were the conclusion of intelligence and they, the team, are one and the same. On the first is the dishonor as to the second they show their own lack of intellect.
The Supreme Court is the one power that should ALWAYS rise above these petty differences - or it will not be able to spare us the consequences of them; which is supposed to be it's Primary Function!
I'll miss Justice Souter; like Him, I too love to read, cherish civility, and I generally keep to myself. I also weigh about the same, and have a 155 IQ....Hmmmmm; .I wonder if HE could beat ME a Scrabble!
The traditional view is that tenure protects their objectivity. The reality is that this kind of security isolates them from the spirit of the Constitution as well as the Americans they are supposed to be serving.
Souter's position - the government can take what they want when they want.
Souter, champion of property rights.
While not the activist (s)he was... I too was very dubious at the time of Souter's nomination........ (though, thankfully, NOT based on the scurrilous accusations leveled by A FEW members of NOW.....and regurgitated by "Fuji" above).......and I too have been proven wrong by Souter's exemplary tenure on the court.
I like to think Souter's association with a particular hero of mine, retired Justice Wm. Brennan, may have helped him to fully embrace the independece he so famously displayed as a justice.
The often hackneyed phrase: "A Great American" applies fully in the case of Justice Souter, and we are all in his debt.
Regards,
tm
People like Justice Souter demonstrate what practioners of the law should be like, and indeed what they can be like, even in the midst of the sturm und drang of the dismal Bush years. He is an inspiration.
Our Supreme Court should be above partisan manipulation and I think Souter demonstrated that.
And GardenerNorCal, thank you for saying what I was thinking as I read this comment from ummeli. Yes. We have to humbly entreat ummeli to stand pat. Mainly, we need to offer the kind of support in our various communities that helps attorneys like him feel they ARE doing the right thing to be available to the rest of us when we need them. (...and we DO need them, our very way of life only exists because of lawyers of this ilk!) The alternative is to have the courts and lawmakers who are moral terrorists like those we have been already experiencing. We can't afford to lose the FEW caring legal professionals we do have. It is on those mental and moral abilities that this country is resting... take them away and you have chaos ... complete and utter chaos.
In fact, it is only the fact that President Obama will choose the next Justice that saves us from some pretty dire consequences had the 'other side' won the election.
ummeli -- you are needed and appreciated. And, anytime you need to be reminded of that verity, just re-read my genuine thanks for your remarks. Kudos. Thank you so much for being part of our system of justice. Really.
LMAO!
Taney wrote, "African Americans, being considered "of an inferior order and altogether unfit to associate with the white race" at the time the Constitution was drafted, could not be considered citizens of the United States". The Supreme Court never actually overruled itself on the first "dredful" decision. It took a Constitutional Amendment to right that wrong.
Let's hope Souter's error will be righted more easily. That goodness that Bush wrote that Executive Order to abolish federal property takeovers and most of the states enacted their own legislation effectively canceling out the Kelo fiasco. Then again, Obama will probably overwrite that too.