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Justice CincinnatusDavid Souter—a dying breed, the Yankee Republican.

By Kermit RooseveltPosted Friday, May 1, 2009, at 7:00 PM ET

More important, Souter's performance on the court tracked his testimony during his confirmation hearings, for anyone who was paying close attention. Souter described himself as a cautious moderate, conservative in his distaste for drastic change and the importance he attached to precedent. On the controversial issue of the right to privacy, he described himself as a follower of Justice John Marshall Harlan, who wrote that constitutional due process of law includes protection against "all substantial arbitrary impositions and purposeless restraints." Souter believed that judges should not substitute their views of wise policy for those of the legislature but also that judges must play a meaningful role if legislative action becomes oppressive. It was not astonishing, then, when in the 1992 case Planned Parenthood v. Casey, he joined Justices Sandra Day O'Connor and Anthony Kennedy to reaffirm the central abortion-rights holding of Roe, basing his decision in significant part on respect for precedent.

Of course, other justices have sounded similar notes at their confirmation hearings and gone on to perform quite differently than promised. Souter's hearings, perhaps, offered a rather too handy template for what a justice seeking confirmation should say, regardless of his or her actual beliefs. Other nominees have promised humility and pledged their fealty to Justice Harlan, only to become wrecking balls once appointed. It is hard to escape the conclusion that one of Souter's distinguishing characteristics is his honesty.

That is something that the Supreme Court and the nation will miss. It will not be very hard to replace Souter's vote. Any Obama appointee will most likely vote roughly the same way, at least on the most contested issues that capture public attention. But it will be much harder to find someone with the same judicial temperament as Souter, the same open-mindedness, desire to learn, and willingness to take each case as it comes and reconsider past positions when necessary.

Souter was never an agenda-driven justice. If he had been, I think he would have stayed longer. With the replacement of just one conservative member of the court, Souter's frequent four-justice dissents, from the court's liberal-moderate wing, could have become majorities. I'd hoped he would stay long enough to see that happen. But I think he feels he has done his duty.

The comparable figure that comes to my mind is Cincinnatus, the Roman hero called to leadership who cast off his authority and returned home to his farm as soon as the crisis was past. Souter did not seek out his position, nor, it now seems clear, did he value it for its own sake. He did not go to the court to effect change; instead he did us a great service by resisting it. Reading the long and heated opinions in Casey, now, has something of the drama of a visit to Gettysburg. That was the closest the enemies of Roe came to overturning legal abortion. They came close indeed. But the charge fell short in the end, turned back by just a few people, Souter crucially among them, who found themselves in the right place at the right time. Some of the recent rulings limiting presidential power in the face of the Bush administration's protestations were 5-4 decisions as well; there, too, the vote of a single justice made the difference.

I am sorry to see Justice Souter go. The court will miss his intelligence, his integrity, and his humor. But he has earned his release, if that is what he wants. He leaves with his honor, and he should have our thanks as well.

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