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David H. Souter: Justice Unbound—A Commentary by Linda Greenhouse ’78 MSL

The following commentary was published in The New York Times on May 3, 2009.

David H. Souter: Justice Unbound
By Linda Greenhouse ’78 MSL

David H. Souter had no agenda 19 years ago when he took his seat on the Supreme Court, but he did have a goal: not to become a creature of Washington, a captive of the privileges and power that came with a job he was entitled to hold for the rest of his life. In this, no matter what else can be said about his tenure on the court, he succeeded brilliantly.

Just a few decades ago, this would hardly have been a singular accomplishment. Even the most distinguished Supreme Court justices often disappeared from public view, speaking only through their opinions — the full texts of which were all but inaccessible to ordinary citizens without access to a law library. But in this media-saturated age, the justices are everywhere. If they are not on book tours, they are opining on the authorship of Shakespeare’s plays, or mingling with their peers in Europe, or on C-Span addressing high school students, or at least delivering named lectures at law schools.

None of this held any appeal for David Souter, who after returning home from his Rhodes scholarship at Magdalen College, Oxford, crossed the Atlantic only once again, for a reunion there. Who needed Paris if you had Boston, he would remark to friends. When the court is in recess, he gets in his Volkswagen and heads to Weare, N.H., to the small farmhouse that was home to his parents and grandparents.

This pattern gave rise to a widespread view of Justice Souter as a misfit or a loner, not quite in touch with modern life. But to focus on his eccentricities — his daily lunch of yogurt and an apple, core and all; the absence of a computer in his personal office — is to miss the essence of a man who in fact is perfectly suited to his job, just not to its trappings. His polite but persistent questioning of lawyers who appear before the court displays his meticulous preparation and his mastery of the case at hand and the cases relevant to it. Far from being out of touch with the modern world, he has simply refused to surrender to it control over aspects of his own life that give him deep contentment: hiking, sailing, time with old friends, reading history.

“History provides an antidote to cynicism about the past,” he said at a meeting in March of the American Academy of Arts and Sciences, of which he is a fellow. His participation in a session on the importance of studying the humanities was a rare out-of-court public appearance and therefore attracted news coverage. The take-away quotation from the session was his remark that as each new Supreme Court term began, he prepared himself to undergo “sort of an annual intellectual lobotomy” — a remark that, out of context, seemed baffling and oddly alienated. What he meant was clear from the prepared portion of his talk: that the demands of the term tore him away from the serious reading he sees as essential to the job.

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.

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.

Their fears seemed well founded this past week, during the court’s final argument session of the term. The question was whether a central portion of the Voting Rights Act is constitutional, and as the argument progressed, it appeared quite likely that the answer from Chief Justice Roberts and his conservative allies might well be “no.” Nathaniel Persily, an election law expert at Columbia Law School who was in the courtroom audience, wrote later on an election law listserv that Justice Souter looked “visibly angry” during the argument. Professor Persily, reflecting the growing expectation that Justice Souter might soon announce his retirement, added: “I got the sense that he was disappointed that he might be leaving the Court with a dissent in this case as being his parting gesture.”

That this prophecy is likely to prove correct does not necessarily mean that David Souter is going away mad, or that, more generally, his well-known distaste for Washington is driving him back to New Hampshire. Rather, on the eve of his 70th birthday, he is going home to reclaim a life he put on hold 19 years ago.

During the Bush years, as Justice Souter’s place on the liberal side of the bench became ever more firmly anchored, the cry of “no more Souters” was often heard from Republican activists, dismayed at how the president’s father’s choice had turned out. They can now, perhaps, take comfort. David Souter is an original. There will be no more Souters.

Linda Greenhouse, former Supreme Court correspondent for The Times, is a senior fellow at Yale Law School and author of “Becoming Justice Blackmun.”