The Judgment on Justice Souter
By The Editors May 1, 2009, 6:19 pm
(Photo: Jim Cole/Associated Press)
Updated, May 1, 9:10 p.m. | Vikram Amar of U.C. Davis School of Law and Akhil Amar of Yale Law School share their experiences of Justice Souter, the private and public speaker.
Updated, May 1, 8:15 p.m. | Lawrence Lessig of Stanford Law School joins the discussion.
Supreme Court Justice David H. Souter announced today that he will retire at the end of June, after more than 18 years on the court. Although he was appointed by President George H.W. Bush, over the years he became a reliable fourth vote in the liberal minority as the court became more conservative.
President Obama praised Justice Souter as having shown “what it means to be a fair-minded and independent judge,” and promised to nominate a replacement who would follow that example.
We asked several legal scholars to identify Justice Souter’s most notable contribution to the court and his most salient quality as a jurist.
- Lani Guinier, Harvard Law School
- M. Edward Whelan III, Ethics and Public Policy Center
- Edward Lazarus, lawyer and author
- Lucas A. Powe Jr., University of Texas Law School
- Kermit Roosevelt, University of Pennsylvania
- Lawrence Lessig, Stanford Law School
- Orin Kerr, George Washington Law School
- Vikram Amar, U.C. Davis Law School
- Akhil Amar, Yale Law School
An Opening for a Passionate Voice
Lani Guinieris the Bennett Boskey Professor at Harvard Law School. She is the author of articles in the Harvard Law Review and the Boston University Law Review, which expand on the argument presented here.
Justice Souter was appointed to the seat previously held by Justice William Brennan, the “liberal lion” who used his political savvy to assemble surprising 5-4 majorities in support of the downtrodden. Justice Souter leaves the court with no one quite like that — certainly not on the left.
Depending upon the choice President Obama makes — Justice Souter’s legacy could be the opening up of the court to a pragmatic politician who understands Justice Brennan’s “rule of five” for a majority opinion. However, President Obama’s nominee might be even more influential if she understands her power as a dissenter and uses her voice on the court to mobilize the people themselves to change the meaning of the Constitution over time.
Any successor to the Souter seat should learn the power of the dissenter.
We’ve seen this on the right, where Justice Scalia plays an active role in creating the philosophical ground upon which citizens can advance alternative interpretations of the constitution of their own.
In his dissent, for example, in Lawrence v. Texas , which found the Texas sodomy statute unconstitutional, Justice Scalia was in conversation with a conservative constituency.
Within a few days of having published his dissent in that case, conservative activists were circulating copies of it. We have also seen it on the left, with Justice Ruth Bader Ginsburg issuing several forceful oral dissents on gender issues, including one in the pay equity case of Lilly Ledbetter.
Justice Souter joined Justice Ginsburg in dissenting from the majority opinion, which threw out Ms. Ledbetter’s suit because she did not file it as soon as she received her first shortchanged paycheck. Yet Ms. Ledbetter, an Alabama grandmother, did not learn of the pay disparity she suffered until someone put an anonymous note in her box. Moreover, as Justice Ginsburg explained, women in an all-male work force are often scared to make waves.
Justice Ginsburg’s forceful and passionate dissent helped frame the issue. Her plain language spurred activists, politicians and the Obama campaign to push Congress to change the law. As a result of this mobilization, the first major piece of legislation signed by President Obama, the Lilly Ledbetter Equal Pay Act, overruled the court majority’s cramped decision.
With conservatives strongly positioned in the majority on the court, President Obama’s nominee will likely have to show her judicial philosophy primarily in dissent. President Obama should appoint a jurist who, like Justices Ginsburg and Scalia, speaks directly to the American people in a voice they can understand.
The Souter Mistake
M. Edward Whelan III is the president of the Ethics and Public Policy Center and a contributor to National Review Online’s Bench Memos blog. He is a former law clerk for Justice Antonin Scalia.
Justice Souter’s reported decision to retire from the Supreme Court is a testament to his admirable lack of interest in the D.C. power scene. My guess (and I don’t pretend that it’s more than that) is that he’s eager to return to his beloved New Hampshire to hike its mountains, read history and enjoy the quiet life.
What will Justice Souter be remembered for? No opinion of his comes to my mind except the joint opinion that he, Justice O’Connor and Justice Kennedy co-authored in 1992 in Planned Parenthood v. Casey. That joint opinion is significant not for its coherence or elegance (it has neither quality) but because it perpetuated Roe v. Wade’s removal of the issue of abortion policy from the ordinary democratic processes — and it resorted to what Justice Scalia aptly called a “Nietzschean vision” of the judicial role in order to do so.
Justice Souter has been significant primarily for providing one of the five votes in favor of the “liberal” position on important cases.
The end result was not, as Souter and company contended, a resolution of the bitter national controversy over abortion, but the continued poisoning of American politics by the Court’s power grab on that issue.
Beyond that opinion, Justice Souter has been significant primarily for providing, depending on where Justice Kennedy’s vote has been, one of the five votes in favor of the “liberal” position on important cases (often inventing new rights, preserving activist precedents, or otherwise expanding judicial power) or, less often, one of the four votes dissenting from majority decisions that adopt the “conservative” position (which position is often simply to defer to democratic enactments). And, of course, his byzantine, often impenetrable, writing style is distinctive.
My guess is that Justice Souter will, in the end, be remembered most as President George H.W. Bush’s worst mistake — a mistake, of course, that some celebrate and others (myself included) lament. Legal historians of the future may puzzle over how the same president could appoint both Justice Souter and Justice Thomas, and they will ponder how different — and, in my judgment, better — the state of American constitutional law and the quality of American politics would be if President Bush had not made the Souter mistake.
Intellectual Rigor
Edward Lazarus, a lawyer in private practice, served as a law clerk to Supreme Court Justice Harry A. Blackmun and is the author of “Closed Chambers: The Rise, Fall, and Future of the Modern Supreme Court.”
In hundreds of opinions written during his 18 year tenure (156 majorities and 123 dissents), Justice Souter has had a profound impact on many fields of law. These range from the First Amendment, where he wrote leading opinions dealing with the Establishment Clause and the right of association, to copyright, where he wrote the Grockster decision limiting peer to peer file sharing networks, to the right of privacy, where he co-authored with Justices Sandra Day O’Connor and Anthony Kennedy the opinion in Planned Parenthood v. Casey that reaffirmed the core principles of Roe v. Wade.
In many fights over state and federal power, Justice Souter provided intellectual reinforcement to progressives inside and outside the judiciary.
His greatest contribution, however, lies not in any isolated set of opinions but in the intellectual rigor that he brought to the more liberal wing of a deeply divided Court. At the time of Justice Souter’s appointment, the liberals were suffering from intellectual exhaustion and had all but ceded to Justice Antonin Scalia and his fellow conservatives the mantle of principled judicial decision-making based on an “objective” view of constitutional text and history.
But in a series of dissents from the Rehnquist Court’s states’ rights agenda, Justice Souter showed that constitutional history and text (not just squishy notions of a “living Constitution”) also supports a decidedly more liberal view of constitutional law.
Indeed, he showed that in important instances the liberals had the better of the historical and linguistic arguments — and that Scalia & Co. were not nearly so “objective” in their decision-making as they liked to profess. And thus, while Justice Souter lost by 5-4 votes many fights over the how the Constitution balances state and federal power, at a crucial moment he provided intellectual reinforcement to progressives both inside and outside the judiciary.
This is, of course, a hugely surprising legacy for the first President Bush’s “stealth” candidate to be another solid conservative vote on the Court. But Justice Souter’s ideological record simply mirrors politics outside the Court.
The once robust population of moderate New England “Lincoln” Republicans — who, like David Souter, tend to be deeply suspicious of states’ rights or of legislating morality — have moved into the Democratic column as the Republican Party has become the party of evangelicals and the South. Very much in the spirit of the flinty New Hampshire man, Justice Souter will be breaking convention by retiring in his prime. Like so much of his tenure, that too is refreshing — and is among the reasons he will be sorely missed.
Unmemorable Opinions, a Memorable Man
Lucas A. Powe Jr. is a professor of law and government at the University of Texas and author of “The Supreme Court and the American Elite, 1789-2008.” He was a clerk to Supreme Court Justice William O. Douglas.
Of the current nine, my favorite justice is retiring. Yet his most memorable opinion, which was also signed by Justices O’Connor and Kennedy, the separate opinion sticking to Roe v. Wade in Planned Parenthood v. Casey is the one I hold most up to scorn each year when I teach constitutional law.
He couldn’t be my favorite for what he wrote; he was my favorite for what he was.
And from a constitutional law perspective the only other opinions I associate with him are his dissent, based on Eleventh Amendment principles, in Seminole Tribe of Florida v. Florida and his sober assessment of the death penalty in his Kansas v. Marsh dissent.
He couldn’t be my favorite for what he wrote; he was my favorite for what he was. He was a judge, a man who in his confirmation hearings said he would listen and was telling the absolute truth.
Everyone will note that he was one of the four members of the liberal bloc and that his replacement will vote as Justice Souter has voted. But he wasn’t always a liberal; indeed, only in the context of the Supreme Court of his era could he be classified as a liberal.
The first President Bush selected him because his Justice Department deemed Ken Starr insufficiently conservative. In his first term, Justice Souter was a reliable conservative. But when Justice Thomas joined the Court, its center of gravity moved to the right. Justice Souter was a New England Republican and like other New England Republicans he was uncomfortable with Reagan conservatives.
Thus by staying put he found himself aligned with Justices Stevens, Ginsburg and Breyer in the so-called liberal bloc. Now the bloc will get a real liberal, which I celebrate, but I’ll still miss David Souter. I wish it had been any other justice.
Conservative and Liberal
Kermit Roosevelt is a professor at the University of Pennsylvania Law School. He clerked for Justice Souter during the 1999-2000 Term.
Justice Souter’s most obvious contribution to the Supreme Court’s jurisprudence was his role in preserving Roe v. Wade. When Planned Parenthood v. Casey was argued, most observers thought Roe v. Wade would be overruled. It was a surprise when three Republican-appointed Justices O’Connor, Kennedy, and Souter came together to write a plurality opinion reaffirming Roe’s essential holding.
Beyond that, I believe that Justice Souter will be remembered as a careful, thoughtful, and open-minded judge. He was conservative in the sense that he respected precedent and did not seek drastic change, but he was liberal in that he saw a role for judges in protecting individual rights against arbitrary or oppressive government action.
Fidelity to the Institution
Lawrence Lessig is C. Wendell and Edith M. Carlsmith Professor of Law at Stanford Law School. He is a former law clerk for Justice Antonin Scalia.
We don’t know this for sure, but I would bet his most notable contribution was to get at least Justices Kennedy and O’Connor to recognize how damaging it would have been to the Supreme Court if it had overturned Roe v. Wade in the Casey case. Justice Souter saw that the integrity and independence of the court would have been severely weakened if it were seen to reverse a constitutional decision because of presidential appointments.
Whether or not he agreed with the original decision in Roe (and I suspect he did not), he saw that maintaining the perception of independence was critical to the long term viability of a Supreme Court. His fidelity was thus not just to the meaning of the Constitution, but also to the role of a judge, and the institution of the court on which he served.
It Was Never About Him
Orin Kerr, a professor of law at George Washington University, contributes regularly to The Volokh Conspiracy. He is a former law clerk for Justice Anthony M. Kennedy.
Justice Souter’s main contribution has been as a thoughtful and intelligent member of the Supreme Court’s liberal voting bloc. Although he was nominated by the first President Bush, Souter found himself taking positions more associated with Democratic nominees than Republican nominees.
He was not a justice who came to the court with an agenda, and who voted to further it. Instead, he reached his views after years of study, happening to end up on the liberal side of most issues.
He is not looking to cash in, or write a book, or take another job.
Justice Souter’s most pronounced quality has been his integrity. Justice Souter will long be remembered for the unmatched personal and intellectual integrity he brought to the Court. You can agree or disagree with his opinions, but he has been a tremendously fair-minded justice. His questions at oral argument are always perceptive and thoughtful. He doesn’t take short cuts.
Finally, Justice Souter has a sense of humility that is rare in such a powerful public figure. His decision to resign is a good example. Here is one of the most powerful people in the United States, who has life tenure and is at the peak of his power and ability, voluntarily giving up his position. He is not looking to cash in, or write a book, or take another job. Instead, he has simply had enough, and he wants to move on and do other things.
Most justices don’t simply walk away from the position like that; their identities are inseparable from the black robes and the prestige of their position. Not Justice Souter.
A Private Chat
Vikram Amar is associate dean for academic affairs and professor of law at University of California, Davis, School of Law. He is a former law clerk for Justice Harry Blackmun.
Justice Souter is the most amenable conversationalist. I was to be at the court last November, so I wrote to him in advance, asking if I might drop by his office to meet him. He promptly wrote back, saying it was “about time” we got together. We met days after the election, and he was quite upbeat. Our talk ranged from the historical meaning of the election, to the delightful bookstore he had explored during his (only?) visit to San Francisco, to some memories he had about the Justice William Brennan, whom he replaced, and Justice Harry Blackmun, too. I tried to leave about every 10 minutes, feeling guilty I was keeping him from his work. But he would have none of that.
When I finally rose after about an hour, I suggested that, given the election’s outcome, his decision to remain on the court for decades would now be one of true choice rather than obligation. He smiled at me and replied: “I’m not falling for that.”
Public Speaker
Akhil Amar is Sterling Professor of Law at Yale Law School and author of “America’s Constitution: A Biography.”
I had the chance to see Justice Souter twice as a speaker at conferences for the federal judges on the Third Circuit, which includes Delaware, New Jersey, and Pennsylvania. Both times, Justice Souter was the keynote speaker. Both times he spoke without notes, unfolding his story in a leisurely, roundabout way. The first time, the story was an extended yarn about a judicial colleague. He had me — and the rest of the crowd — in stitches and I laughed so hard I cried. The second time, the story was a tale of grim sacrifice — about a tiny cluster of New Englanders who at a pivotal moment at Gettysburg threw themselves into the breach and gave their lives at that crucial moment in history. Tears of a very different sort rolled down my cheeks. He’s a remarkable public speaker.
What does it say about today’s Supreme Court that he would seem so eager to leave? Perhaps that the court is no longer (if it ever was) a place for leisurely conversation among the justices. Most of their interactions with each other are often rather formal — in written memos, rather than in conversational banter. I get the feeling that some of Justice Souter’s happiest interactions occurred with his predecessor William Brennan, who was also a sparkling conversationalist, I’m told.