Lithwick On Souter

I have often written of my profound admiration for Justice David Souter - I call him the finest Justice since Brennan. And I want to defend that argument with a detailed post. But alas, other projects, paying and otherwise, have gotten in the way. But I noticed a comment from txpublicdefender about Dahlia Lithwick's article on Souter, and it seems clear to me that she feels much as I do about Justice Souter. Here is a wonderful passage from Lithwick:

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.

It is clear that Justice Souter has been underestimated in his time. I trust history will deliver him the due he deserves.

Speaking for me only

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    yay! (5.00 / 1) (#1)
    by txpublicdefender on Sun May 03, 2009 at 01:48:43 PM EST
    Speaking for me only

    And me, too! :)

    Thanks for the tip (5.00 / 1) (#2)
    by Big Tent Democrat on Sun May 03, 2009 at 01:51:48 PM EST
    You should also note (none / 0) (#3)
    by Steve M on Sun May 03, 2009 at 03:00:21 PM EST
    this post by a former Souter clerk and good friend of mine.

    Excellent. (none / 0) (#4)
    by oculus on Sun May 03, 2009 at 03:16:31 PM EST
    PS  Please ask your friend why, in his resignation letter to Pres. Obama, Justice Souter referred to the Supreme Court "rising" at the end of this term.  I know judges are "elevated" to the bench.

    Seated at the bench (none / 0) (#9)
    by Peter G on Sun May 03, 2009 at 04:36:31 PM EST
    and thus rising to a standing position to head out when they're done announcing the Term's final decisions

    Have you ever heard the term "rising" (none / 0) (#10)
    by oculus on Sun May 03, 2009 at 04:39:18 PM EST
    to refer to the end of a SCOTUS term?

    Reference: (none / 0) (#11)
    by oculus on Sun May 03, 2009 at 04:57:14 PM EST
    The Lawson reference (none / 0) (#13)
    by Peter G on Sun May 03, 2009 at 10:26:23 PM EST
    appears to be a story, not a poem.  But interesting.  I'm pretty sure the correct reference is not this one.

    You know (none / 0) (#5)
    by Big Tent Democrat on Sun May 03, 2009 at 03:57:55 PM EST
    Of course I do not know Souter but for some reason, the description fits the writings.

    what a wonderful tribute fropm your friend.


    I liked (5.00 / 2) (#6)
    by andgarden on Sun May 03, 2009 at 04:01:23 PM EST
    Why Souter was a great Justice (5.00 / 2) (#7)
    by Big Tent Democrat on Sun May 03, 2009 at 04:11:16 PM EST
    Constitutional change, he explained, "comes about because judges evaluate significant facts differently," or they "discover some relevance to a constitutional rule where earlier judges saw none." He said that "historians can come to the rescue" by explaining how and why this happens. His ostensible text was the Supreme Court's journey from the "separate but equal" holding of Plessy v. Ferguson in 1896 to the desegregation ruling in Brown v. Board of Education 58 years later.

    Why he also appears to be a great human being:

    But there was an unspoken, and more pointed, subtext: his continued dismay at the court's 5-to-4 ruling two years ago that invalidated the effort by the public schools of Louisville, Ky., to prevent resegregation by use of a modestly race-conscious student assignment plan. The dissenters -- and Justice Souter was one -- viewed the opinion by Chief Justice John G. Roberts Jr. that this once-segregated city lacked any "compelling interest" in preserving its progress toward integration as profoundly ahistorical and as a troubling signal for the court's future approach to government actions that touched on race.

    I am quite unsparing of those so called progressives who told us how reasonable a man Roberts would be. I knew better. And they should have too.

    I admit I carry a great deal of bitterness towards them on the point.


    I hope she's wrong about VRA 5 (none / 0) (#8)
    by andgarden on Sun May 03, 2009 at 04:17:33 PM EST
    Also, I hope Obama will be able to find a successor Justice with a similar sense of history.

    I am ignorant about legal stuff (none / 0) (#12)
    by Faust on Sun May 03, 2009 at 05:36:58 PM EST
    and I do appreciate these posts.

    precedent depends on the times (none / 0) (#14)
    by diogenes on Sun May 03, 2009 at 10:44:32 PM EST
    When the majority on the court is conservative, a justice who respects precedent is a "great man".  When the majority becomes liberal, a justice who respects precedent is seen as an obstructionist.  Maybe Souter left because he didn't want to be vilified for holding back the left-leaning Obama Court which would develop when Obama replaced one of the conservatives.