Levellers

Faith & Social Justice: In the spirit of Richard Overton and the 17th C. Levellers

An Appreciation of Justice David Hackett Souter

225px-davidsouterOn Friday, Associate Justice David Hackett Souter, 69, announced that he is retiring at the end of this term of the Supreme Court of the United States (SCOTUS–as the legal shorthand goes). That’s at the end of June.  Pres. Obama announced that he will seek to have a nominee for Justice Souter’s replacement soon so that the senate confirmation hearings can proceed and the replacement can be sworn in before the Court’s new session which begins on the 1st Monday in October (by law). 

This has led political and legal nerds (including yours truly) to play a new game:  Search federal judges, legal scholars,  politicians with law degrees, etc. for Obama’s likely list of potential nominees and weigh their chances of getting through the confirmation process.  The game has serious implications. Supreme Court justices are appointed for life and their legal judgments affect the law and politics of the land for decades after the president who appoints them is long gone.  E.g., the oldest member of the Supreme Court is Associate Justice John Paul Stevens, 89, who was appointed by the late Pres. Gerald Ford in 1975.  But my speculations will await another time.  I want to take a moment to express appreciation for the departing Justice Souter.

I didn’t expect to like Souter when he was appointed by Pres. George H.W. Bush (Bush I) in 1990.  I knew that Bush desired to appoint a very conservative justice to fill the vacancy left by William J. Brennan, a hero to liberals  and progressives like myself.  I remembered how we had barely escaped being saddled by Reagan with the far-right wackjob in Robert Bork.

[Note 1: That’s one vote I’ll always be grateful to Arlen Specter for.  He led the GOP moderates against the extremist Bork.  Note 2: The Religious Right interprets any criticism of Bork as due to his pro-life views. WRONG. I was thoroughly pro-life when he was nominated and still find his opinions on that issue to be among his most legally challenging. I still thought Bork was a wackjob. He thought Brown v. Board of Education (the unanimous 1954 decision which outlawed segregation) was wrongly decided! He believed Gideon v. Wainwright which demands a right to counsel for those who cannot afford lawyers to be wrongly decided! He thought Miranda v. Arizona which demands that the police read suspects their rights to remain silent, to have an attorney present before questioning, and to be warned that any statement they give can be used against them at trial to be wrongly decided, too! Bork would have been a dangerous addition to the Court.  Of course, after Bork was blocked, Reagan pushed through Scalia, whose extremism isn’t much different–except on free speech where Scalia has surprised liberals and enfuriated conservatives by consistently striking down restrictions on free speech, including a Texas law against flag burning.]   I suspected Souter to be another Bork without a sufficient paper trail to be caught.

I have been pleasantly surprised. He is no liberal–no matter what Republicans say whose battle cry has become “No more Souters!”  But he is a very thoughtful justice with an independent mind–exactly the kind of qualifications one needs in a Supreme Court justice.  He began as a swing vote on the Court, a moderate conservative who relies heavily on precedent and does not like to see courts make radical changes in settled law.  But as the SCOTUS grew ever more conservative, Souter sided more and more with the moderate dissenters. (After the departures of Brennan, Marshall, and Blackmun, there have been no real liberals on SCOTUS–the closest being Ruth Bader Ginsburg, who would have been considered a moderate in earlier decades.)

Here is a brief sketch:  Born in 1939 in Melrose, MA, he spent his childhood and adolescence in rural  New Hampshire. He fell in love with the New Hampshire farmlands and hills and still loves to climb and hike in that area to this day.  This respect for rural America has led to the one consistently liberal area of his jurisprudence: Souter’s strong commitment to environmentalism against the depradations of corporations.   This rural background also led Souter to a love of simple living that stays with him: He does not own a television or cell phone and does not use email. He writes out all his legal briefs in longhand using a fountain pen.  He has no answering machine or personal computer.  He lives a spartan existence in a small apartment.  He loves reading, plays and opera, and jogging, and avoids the Washington, D.C. nightlife like it is a plague.  He returns every year when the court is not in session to NH (by car, not using air travel except when absolutely necessary–and for this reason turning down many opportunities to lecture in Europe) to hike in the NH woods and mountains.  Although once engaged, he has never married, leading him to once be listed as among D.C.’s “most eligible bachelors.” (At 69, that is probably no longer the case!)

Some have used his persistant singleness to argue for Souter being closeted gay, and that’s possible, but there is no real evidence of this. Also, I bristle at the suggestion that all people who aren’t either married or obviously sexually active (even promiscuous) must be gay.  We used to understand that some people had low sex drives and, for whatever reasons, preferred single life.  David Souter seems to be among them. I think it has to do with his love of simplicity. Whatever the joys of married life and parenthood (they are many), they do not include “simplicity.” Marriage and children mean that one’s life is inevitably COMPLICATED–for better or worse.🙂 Souter’s semi-monastic life has its attractions–even for those of us who have chosen another path.

His low-tech existence also has its attractions. I have succumbed to the personal computer and to blogging and email, but I often check my email only once a week and find the amount of it discouraging. I try to be selective in bowing to the high-tech age: I don’t own a cell phone and didn’t own a pager when they were the rage, either. I won’t go on My Space, Facebook, or Twitter because I believe I’d never get any real writing done. I have cable TV, but try to rotate: 1 month of watching followed by a month of not watching. My addiction to news, however, means that during my off months from TV, I am glued to National Public Radio and the BBC!  I love the way the internet really is an information highway–and hate its filth, commercialism, and meanspiritedness.  Souter’s decisions resonate with me even where I have not made the same ones.  Note: Souter’s low-tech lifestyle means that while he is a “nerd,” he is not a “geek.” I appreciate the difference since my techno-geek wife has to help me with all electronic equipment. 🙂

Souter earned a B.A. in philosophy at Harvard (magna cum laude, Phi Beta Kappa) with a thesis on the judicial activist philosophy of Oliver Wendell Holmes. (In confirmation hearings, Souter said that he rejected Holmes’ judicial activism, but envied his ability to  write and many of his substantive positions. This was a clue that neither liberals nor conservatives picked up on in 1990.)   Selected as a Rhodes Scholar, Souter earned an M.A. in political science from Magdalen College, Oxford University, in 1963.  He earned his law degree from Harvard University Law School in 1966.  He is a cradle Episcopalian and a lifelong Republican in the old-style New England version of Republicanism: fiscally and legally conservative but not radically right; libertarian in social views (i.e., if it doesn’t hurt the common good, allow it even if one finds it personally distasteful); cautious about state power, but also about corporate power; arguing for a strong military defense force, but VERY cognizant of the limits of military power and generally opposed to military adventurism.  It is a style of Republicanism that is now fading fast.

Souter worked in private practice for only two years, not liking that aspect of the law.  He became Asst. Attorney General of New Hampshire in 1968, beginning a long career in public service.  He was a strict law and order person as a prosecutor and that part of his judicial philosophy remains.  The Attorney General of NH in those days was Warren Rudman and Souter and Rudman became fast friends–and therein lies the tale of Souter’s later career.  Rudman made him Deputy AG in 1971.  When Rudman left to return to private practice in 1976, Souter succeeded him as AG of NH where he was known as a tough prosecutor. 

Again because of Rudman’s influence, Souter was named Associate Justice of the Superior Court of NH in 1978.  As a judge, he was known to sketch jurists and witnesses. He was known for treating everyone in court, including defendents, with great respect.  He was also known for tough sentencing.  From there, Souter was named Associate Justice  of the NH Supreme Court in 1983, and Associate Judge of the U.S. Court of Appeals of the First Circuit in 1990.

At this time, Rudman had become a Republican Senator from NH and former NH Gov. John Sununu (who had passed Souter over for Chief Justice of NH’s Supreme Court) had become White House Chief of Staff to Pres. George H. W. Bush (Bush I).  They were both instrumental in Bush’s nomination of Souter for the SCOTUS position vacated by the retirement of the liberal champion, William J. Brennan (STILL one of my heroes).  At that time, few outside NH knew who Souter was, although he had been on Reagan’s short list for the SCOTUS seat that eventually went to Justice Anthony Kennedy (the swing vote these days).  Bush I wanted to name Clarence Thomas to Brennan’s seat (as he eventually was to the seat of the other great liberal dissenter, Thurgood Marshall).  Rudman and Sununu convinced Bush I that Thomas did not have enough judicial experience and he nominated Souter, instead. 

The rest is history.  Liberal groups marshalled against Souter, convinced he would be another Bork or Scalia–and his confirmation was far from unanimous.  Conservatives had never heard of Souter, but the liberal opposition reassured them that they were getting a reliably conservative voice on SCOTUS. Both  groups were wrong.  Souter’s first two years on the bench were reliably conservative, but as the Court moved right, he moved center and then slightly left of (the new) center.  Conservatives were furious when Souter provided the vote to prevent overturning Roe v. Wade (the 1973 decision which struck down most laws against abortion) in Planned Parenthood v. Casey in 1992 (although Casey did allow more restrictions that Roe).  Civil libertarians like myself were pleasantly surprised when Souter ruled with the majority in another 1992 case, Lee v. Wiseman against a school-sponsored public prayer.

Souter’s departure while relatively young (by the standards of a court of lifetime appointees who often die in office!) and in good health is unusual.  But it should not be surprising. Since his appointment in 1990, he has let it be known that he does not like Washington, D.C.  He leaves immediately at the end of every Court year back  to NH and returns only a few days before the new session. As mentioned above, he does not participate in the Washington night life.  He has called his position, “the world’s best job  in the world’s worst city.”  I find it refreshing that he is not addicted to power and prestige and wants to retire in time to enjoy the NH hills and woods some more and to visit old friends and family.  There is many a career politician in both major parties who could take a lesson here.

But I think it likely that Souter’s departure also has to do with Bush v. Gore, the 2000 case which stopped the recount in FL and declared Gov. George W. Bush winner of the presidential election.  Souter sided with the 4 against the decision.  It wasn’t losing that disturbed him:  Every justice expects to lose as well as win controversial court cases.  What disturbed him was the blatant partisanship.  Souter believed that judges are to be above party loyalties–as they are.  Watching colleagues go against previously articulated judicial philosophies (especially the conservative allegiance to federalism–the belief that state decisions should be decided by states wherever possible) because those policies would likely work against the person they WANTED to win, greatly disturbed Souter.  He was especially distraught over the way Justice Sandra Day O’Conner, with whom he was very close, voted with the Renquist-Scalia majority.  So distraught was Souter that friends had to convince him not to resign SCOTUS in protest. 

[Note: When Bush v. Gore was decided, I thought my opposition might be simply be because I couldn’t stand Bush.  I wanted to see if the decision was really as bad as I believed. So, I began reading the legal reaction of conservative legal scholars from Yale’s Stephen Carter, to Duke’s H. Jefferson Powell, and others.  I was not wrong.  The vast majority of legal scholars were horrified by Bush v. Gore and conservative scholars considered it the biggest example of judicial activism (a bad word for conservatives) since Roe v. Wade (their previous benchmark).  So widespread was this reaction that the American Bar Association came very close in 2001 to doing something unprecedented in its history:  issuing a public denunciation of the decision!  Since the ABA is hardly dominated by liberals, this was an indication of how radical a departure from settled law, Bush v. Gore was and how worried most legal scholars are that it will set a precedent–even though the 5 justices in the majority tried to restrict the ruling to that case.  Former MN Sen. Norm Coleman’s lawyers, in his legal contest of Al Franken’s narrow victory, are hoping to appeal to Bush v. Gore before SCOTUS before its all over.  Two of the 5 justices who voted for that decision, O’Conner and Renquist are no longer on the bench. Renquist died and O’Conner retired. But their replacements, Alito and Roberts, are just as conservative if not more so. So, would they suddenly decide that Bush v. Gore IS legal precedent, no matter what the court said in ’00?? My guess, is that SCOTUS will refuse to hear the case. The Constitution clearly says that the Senate is the last word on its own membership. Of course, SCOTUS was the one organ of government that had no constitutional role in presidential elections, too. If the recount could not decide a clear winner, the presidential  election of 2000 should have been thrown to the House of Representatives, per Art. 2.  Since Republicans had the majority of  the House in ’00, B ush would likely still have been declared the winner, but at least the process would have been constitutional!]

I, for one, am glad Souter didn’t resign.  I think of several important cases during the Bush years (especially torture and detention and war powers cases like Hamdan v. Rumsfeld) that might have been decided differently without Souter.  I am among those who  believe that we came very close to losing our democracy altogether during the Bush years.  Without David Souter on the Supreme Court (as well as many other factors), we might well have lost it.

Thank–you, Justice Souter, for putting the law above party. For putting loyalty to law and to country ahead of your own personal desires.  Thank-you for waiting, years after it was no longer pleasant for you to work on SCOTUS.  Thank-you for the thoughtfulness you put into each opinion and dissent–even when I disagree with your conclusions.  Thank-you for your service.  All Americans, indeed the world, owes you thanks for keeping the nation from becoming a dictatorship.  You retired not when you wanted to retire, but when it was safe–when your successor was unlikely to be part of the Scalia/Thomas/Alito/Roberts and sometimes Kennedy cabal that has so distorted American jurisprudence.

Here’s praying that your replacement, no matter her or his general legal philosophy, shows your commitment to the rule of law, your refusal to put party first, and your independence of mind. If she or he showed your love for nature, that might also be a good thing, considering the many ecological questions that are likely to face the SCOTUS.

May 3, 2009 - Posted by | citizenship, courts, judges, judicial philosophy, law

7 Comments

  1. […] original here:  An Appreciation of Justice David Hackett Souter Tags: […]

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  2. Michael: did you write the article posted here re Souter?
    If so, you’re an excellent writer.

    Comment by yahweh | May 4, 2009

  3. Yahweh, forgive me for using the Divine Name, hopefully not in vain. This is not a group blog. Except for special times when I invite guest bloggers or link to other articles, I write everything here.

    Thanks for the compliment on my writing. I did use Judgepedia and the SCOTUS website to get facts on Souter straight, but some of what I wrote was from memory of events, too.

    Comment by Michael Westmoreland-White | May 4, 2009

  4. How could you possibly talk favorably about anyone that a Bush president nominated?

    Comment by Chuck | May 4, 2009

  5. Chuck, Souter was not nominated by W, but by the first Bush. And he got this one right by accident. There is a history of Supreme Court nominees sometimes acting differently than the presidents who nominated them wanted. FDR, one of my favorite presidents, nominated Felix Frankfurter to be a reliably liberal vote. He was a rock-ribbed conservative. Reagan nominated Sandra O’Conner who proved more moderate than anyone expected.

    No president has 100% bad nominees. Souter was a pleasant surprise to me.

    Comment by Michael Westmoreland-White | May 4, 2009

  6. I hope Obama’s appointment will surprise him and act differently.

    Comment by Chuck | May 6, 2009

  7. Depending on the issue, Chuck, I might agree with you. For instance, Obama has continued to Bush policy of “faith based initiatives” funded by the government. I’d hope his Supreme Court nominee thinks that’s an unconstitutional church-state mixture.

    Obama seems to keep too much of the Bush “state secrets” doctrine and practice and I’d hope his nominee works to strike that down, along with the warrantless wiretapping, and other Executive branch over-reaches.

    Now, I do hope that Obama’s nominee is a strong liberal (not just a moderate like Souter) in the model of Brennan and Marshall, so we probably part company there.

    Comment by Michael Westmoreland-White | May 7, 2009


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