Justice David Souter is a heartbreaker. And I don't just mean in the sense that thousands of middle-aged women swoon each time they breathe his name. (Just last week, I did a panel at which two audience members—whose ages spanned many decades—outed themselves as Mad Souter Groupies.) No, I mean that Justice Souter broke Republican hearts when he proved not to be what John Sununu promised the first President Bush would be a "home run" for conservatism, and then he broke liberal hearts when he failed to be the William Brennan he replaced. And then Souter broke a few more hearts today with his announcement that he is retiring from the Supreme Court.
Souter has always been far too easy to draw in cartoonish terms—sketched out as a man who loves books more than people and the 19th century more than the 21st. As prof Kermit Roosevelt notes today, none of that was ever true. I've heard it said that the good justice could be quite a flirt when he wanted to. His sense of humor on the bench—always dry and usually self-deprecating—is easy to take for granted. Unlike Chief Justice John Roberts (football star) or Antonin Scalia (lead guitarist in a rock band), Souter is the good-looking, nerdy guy in high school who sat in the bleachers and read. He sat in the 1897 bleachers and read philosophy. He was so uncool, he was cool.
His letter of resignation, submitted to the president today, is classic Souter: Two terse lines laying out the statutory basis for his resignation. Whatever the opposite of flair is, David Souter has it in spades.
But it seems to me there's one more broken heart in this equation, and that's Souter's. It's not just, as Roosevelt observes, that the Republican Party has left Souter (and many others, including Arlen Specter) behind. I suspect that somewhere along the line, the Supreme Court had ditched him as well. When Souter joined the court 19 years ago, he was the furthest thing from an ideologue. He was a common law judge, who thought and cared more deeply about the Constitution than he did about politics. At his hearings, he spoke warmly of Justice John Marshall Harlan, who saw the need for restraint and modesty on the part of the judiciary. His lodestar is the value of precedent (something Clarence Thomas apparently does not even believe in, according to Antonin Scalia). A classic Souter concurrence reads: "I am not through regretting that my position in United States v. Navajo Nation, did not carry the day. But it did not, and I agree that the precedent of that case calls for the result reached here."
The notion of a pack of jurists twisting and refitting legal doctrine to achieve a policy outcome is anathema to Souter, and that explains why he never seems quite to have recovered after Bush v. Gore. But the notion that fealty to the letter of the law matters more than the human beings involved was equally appalling to Souter. His simple dissent two years ago in Bowles v. Russell recoiled at the majority's heartless legal formalism: "The District Court told petitioner Keith Bowles that his notice of appeal was due on February 27, 2004. He filed a notice of appeal on February 26, only to be told that he was too late because his deadline had actually been February 24. It is intolerable for the judicial system to treat people this way, and there is not even a technical justification for condoning this bait and switch. I respectfully dissent."
But to paint Souter as tentative or milquetoast is an oversimplification as well. And as we read and reread Souter's opinions (and in recent years some increasingly fiery dissents), we should stop and look carefully at the cases in which he was, after a fashion, loaded for bear: Dissenting in a 2006 case, Kansas v. Marsh, Souter made a passionate case for why "death is different" and judges need to be doubly careful in imposing the death penalty: "A few numbers from a growing literature will give a sense of the reality that must be addressed. When the Governor of Illinois imposed a moratorium on executions in 2000, 13 prisoners under death sentences had been released since 1977 after a number of them were shown to be innocent." Souter felt that the time had come for the courts to take the phenomenon of innocent exonerations to heart. He wasn't willing to let the courts sign off on even one more ambiguous execution and said so in the strongest terms.
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