Striving Always to Get It Right
Reflections on David Souter ’66
Last spring, David Hackett Souter ’66—the U.S. Supreme Court’s 105th justice—announced his retirement and stepped down at the end of the term. We asked four alumni who had firsthand experience with the justice for their reflections.
The Liberalism of the Burkean Conservative
When David Souter was in the process of being confirmed to the Supreme Court, he mentioned as his judicial model the younger Justice John Marshall Harlan—that great dissenter of the Warren Court and the author of a famous dissent in the case of Poe v. Ullman describing the sources of substantive due process under the Constitution.
Republicans eager to ascribe their own views to the nominee read into this comment the expectation that he would adopt a skepticism toward judicial activism. In this they were correct: Justice Souter dissented from many of the most activist opinions of the Rehnquist Court. Some conservative observers also imagined that Justice Souter would object to the expansion of liberal rights. In this they were mistaken. Justice Souter’s jurisprudence, like that of Justice Harlan, is not reactionary, but Burkean. And to the Burkean conservative, the slow, gradual expansion of liberty is the very purpose of the preservation of well-established social and legal norms.
Justice Harlan said as much in Poe v. Ullman. The judge charged with giving content to the general command of due process must look deeply into the structure of constitutional history, to find the core of the ordered liberty that resides there, and apply it to the case at hand. The norms must be defined narrowly and applied cautiously, with close attention to the maintenance of continuity with the past. But because the facts are always new, the rights shaped in response to circumstance are not the same rights that existed before. They are new rights for new cases—not novel, not born from the head of Zeus, but derived from principles that are themselves inferred from the chain of facts and law and cases that have come before.
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Later, critics of the justice—those who had misheard or misread—coined the rallying cry “No more Souters.” In this they will be satisfied: We shall not see his like again. But so long as thoughtful, cautious judges see the seeds of liberty in the cases on the shelves—so long as the arc of the Constitution still bends toward freedom—future justices will follow the Souterian tradition. We will be the luckier for it.
Professor Noah Feldman clerked for Justice Souter in the 1998-99 term.
The Elegant and Humane Mind in Motion
It is difficult to write a tribute to David Souter knowing his very real dislike of hearing his praises sung. So this is not to praise but rather reflect on the example he presents to me, his law clerk. Justice Souter is often described as a man of the 18th or 19th century. His prose style is reminiscent of Henry James, or perhaps Henry Adams. To me, though, Justice Souter embodies a certain aesthetic of pared-down neoclassical minimalist discipline—one that is essentially modern. It begins with his form of life, which is simplicity itself: reading; a spare lunch; work; time alone; a run; more reading. Great pleasure in the lack of excess or frill. Its deeper manifestation resides in his form of reasoning. The approach is to get things done while taking up the minimal space required within the realm of doctrine. In narrow passages between the rationales and principles of precedent, Justice Souter finds the room for assigning rights and remedies, getting from one place to another without wasted movement. Listening to him think is to visualize legal reason as the elegant and humane mind in motion. Its embodiment is not only the justice, but really the man David Souter.
Assistant Professor Jeannie Suk ’02 clerked for Justice Souter in the 2003-04 term.
No Shrinking From the Hard Questions
Justice David Souter is an anomaly: He is a gifted public speaker and raconteur who rarely gives public speeches. While other justices literally circumnavigate the globe to spread their views, apart from his quasi-mandatory annual remarks as circuit justice for the 3rd Circuit, which I had the good fortune of hearing on multiple occasions, Justice Souter eschewed public appearances. After attending a welcoming reception hosted by the Supreme Court press corps soon after his confirmation, Justice Souter reportedly thanked his hosts and said, “This was fun. Let’s do it again when I retire.” Even that proved too soon for the famously private justice.
As a consequence, for most in Washington, the only opportunity to hear Justice Souter speak publicly was at oral argument. And there he was a force. The unwary litigant faced numerous obstacles, not the least of which was deciphering what the justice himself called his “distinct regional accent.” In one illustrative case, Justice Souter asked counsel to identify the critical legal flaw in the statute. Counsel was flummoxed, with no idea why “a floor” was relevant. Sensing the difficulty, Justice Souter explained that he was inquiring (enquiring would be his preferred spelling) about the constitutional infirmity—i.e., the flaw, not the floor—and graciously blamed the misunderstanding on his accent.
The far greater challenge for the advocate was to provide Justice Souter with a direct answer to his very direct questions. Never one to tolerate an evasion or half-answer, Justice Souter would insist on an answer if it took all morning. In one case, an original action memorable for little else, Justice Souter pursued a single question for nearly a half-hour. He eventually obtained a clear answer and the advocate got his vote.
This last point highlights that Justice Souter insisted on an answer for the simple reason that he had an open question. As an advocate, Justice Souter was wonderful to have in your camp and a formidable questioner when he was not. But he would not refrain from asking the hard questions even when he was favorably disposed, nor was he immune to persuasion when he came in skeptical. From the humble perspective of the advocate, that is high praise indeed.
Paul D. Clement ’92 served as the 43rd solicitor general of the United States, from June 2005 until June 2008, and has argued 49 cases before the Court.
The Mark of his Character
David Hackett Souter is a great judge. His Supreme Court opinions have been scholarly and thoughtful. His jurisprudence reflects deep dedication to the principles and values he believes are enshrined in our Constitution.
But Justice Souter’s quality as a judge derives from more than the caliber of his opinions, his intellect and his scholarship. It is rooted in his very approach to the work of his office. He is the most conscientious public servant I have ever known. The seriousness with which he took his responsibilities and his oath, something I saw at first hand, were extraordinary. He worked on weekends and late into the night, striving always to ensure that, to the best of his ability, he got things right. And regardless of circumstance, he was unfailingly polite and considerate to all around him.
The Court will not be the same place without him. But his willingness to walk away from his position while still so young also reflects some of what makes him such a fine judge. Justice Souter has not been changed by the power of his position; he never permitted himself to conclude that he was indispensable to the Court. He deeply missed both the physical setting and culture of New Hampshire, each essential to understanding who he is, and, after almost two decades of service, he decided to return home. Some have expressed puzzlement. But in making this decision, and in making the myriad others he has on the bench, Justice Souter has been concerned with making the right decision, not with how he may look to others.
Justice Souter’s dedication, consideration for others, humility and steadfastness have played essential roles in his work as a judge. But these traits are also a mark of his character. For Justice Souter is not merely a great judge—he is a great human being.
Peter J. Rubin ’88 is an associate justice of the Massachusetts Appeals Court. From 1991 to 1993, he served as a law clerk to Justice Souter.
The Arc of a Judicial Pragmatist
Justice David Hackett Souter ’66 was appointed to the Court by President George H.W. Bush in 1990—filling the seat left by William Brennan LL.B. ’31. He served on the Court for 19 years and wrote more than 300 opinions. A self-described “judicial pragmatist,” he is perhaps best known for his dissents in landmark cases such as Bush v. Gore, Boy Scouts of America v. Dale, and United States v. Lopez, as well as his joint authorship of the plurality opinion in Planned Parenthood v. Casey.
Prior to his appointment to the Court, Souter was the attorney general for the state of New Hampshire, an associate justice for the New Hampshire Superior Court, an associate justice of the New Hampshire Supreme Court and a judge on the 1st Circuit Court of Appeals. During his tenure on the Court, he returned to Harvard Law School several times to judge the Ames Moot Court competition. In the fall, Souter (who is also a graduate of Harvard College) came back again to Harvard—this time on the anniversary of the signing of the U.S. Constitution—and participated in a discussion with Professor Noah Feldman.
See a video of the discussion.
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