Thursday, May 07, 2009

David Souter

Some thoughts on Supreme Court justice David Souter's forthcoming retirement at the 2008 Term's end . . .

Like many people who follow the Supreme Court, I had almost no idea who David Souter was when George H.W. Bush nominated him to replace William Brennan, who retired after the 1990 Term. I say almost no idea only because I recognized the name from an obscure free exercise/free speech decision of the Court called Wooley v. Maynard (1977). In that case, the justices, by a 6-3 majority, ruled that New Hampshire could not compel Jehovah's Witnesses George and Maxine Maynard to display the state's motto, "Live Free or Die," on their license plate. David Souter was, at the time, the New Hampshire attorney general. He signed the brief but did not argue the case. And the only reason I knew David Souter was on the brief was because I had finished up a research project in which I compiled all the names of all the lawyers who had argued religion cases before the Supreme Court since World War II. For that reason, and that reason alone, David Souter was not completely unfamiliar to me.

But did I have any idea who David Souter really was, what he might really think and how he might decide cases? Not at all. I do remember President Bush's chief of staff, John Sununu, cockily reassuring the constitutional reactionaries pressuring him to appoint one of their own that Souter would be a "home run." Souter came to Sununu through New Hampshire's senior senator, Warren Rudman, who had known the man now serving on the U.S. First Circuit Court of Appeals for a long, long time. In fact, Rudman had hired Souter to work in the state attorney general's office. Detached observers who knew Warren Rudman's approach to politics should have known that he would never have sent up some assembly-line right-winger just to make the mouth breathers at the Free Congress Foundation happy. As long as we're revisiting history, I did not then believe then and do not believe now that President Bush was all that disappointed in how Souter turned out. Souter's approach to abortion rights, affirmative action, voting rights and church-state separation reflected the pre-Ronald Reagan, pre-I-want-the-1988-Republican nomination George Bush's values much more closely than his subsequent appointee, Clarence Thomas did.

And everyone knows what happened from there . . .

David Souter turned state's evidence on the "movement conservatives" in and out of the Reagan administration who had made great strides in making the Court an extension of the executive branch. President Reagan's three appointments, Sandra Day O'Connor, Antonin Scalia and Anthony Kennedy had, so far, worked out just fine, although O'Connor and Kennedy would later demonstrate enough of an independent streak to break with the reactionaries to preserve the Court's foundational decisions on civil rights and liberties and, by the end of O'Connor's 25 year tenure, the second Bush's administration's monarchial approach to presidential power. Scalia was a rubber stamp for the conservative ideologues who staffed the Department of Justice, delivering his opinions with a linguistic flair and intellectual bombast that concealed a startlingly unoriginal legal mind. O'Connor and Kennedy eschewed Scalia's grandiose histrionics in favor of conservative conventionalism, reaching results usually pleasing to the Reagan administration, albeit without Scalia's lectures to his fellow justices on their intellectual inferiority or attention-seeking performances during oral arguments that seemed to suggest a championship junior high debater eager to show everyone his first place ribbon that I could easily imagine him wearing on his robe, if tradition allowed it.

Oh, oh . . . but what about Scalia's "occasional willingness" to break with the Court's conservatives to uphold the constitutional right to burn an American flag or permit Americans citizens detained in military brigs the right to counsel? Doesn't that make him a justice determined to "follow the law," regardless of where it takes him?

No. No, it doesn't. No major league baseball team has ever gone an entire season without winning or losing a game. Not the 1962 New York Mets, the 1944 St. Louis Browns or any version of the Washington Nationals since 2006. And compared to the number of people actually affected by Texas v. Johnson (1989) . . . does anyone recall an epidemic of flag burning after that decision? . . . Scalia's votes and 18th century reasoning on almost everything else do not exactly make that a worthwhile trade-off.

And then there was William Rehnquist's elevation to the Chief Justice's chair, made possible by the retirement of Warren Burger in 1986. Quick, quick . . . can you name the Chief Justice confirmed by the fewest recorded votes in Supreme Court history? Hint: his name appears in this paragraph's first sentence.

So hear comes David Souter, replacing liberal icon William Brennan, with John Sununu promising that his would be the fifth vote -- finally! -- to undo the Court's decisions on abortion, affirmative action, habeas corpus, the rights of criminal defendants, school prayer, voting rights law and on and on. Never mind that the Court's most egregious decisions, to conservatives, were all the the product of the Court under Chief Justice Burger, a Court that never counted more than two justices appointed by Democratic presidents from 1969-1986. Want more? The Court has never had more than two justices appointed by Democratic presidents since 1969 serving on the Court at any one time. Barack Obama, courtesy of David Souter, will be the first Democratic president to have a third Democratic-appointed justice serve on the Court since . . . here we go . . . Lyndon B. Johnson.

That's 41 years, or almost two generations.

David Souter became a bogey man for constitutional reactionaries because they had gotten used to getting almost anything they wanted from the Conservative Five. Conservatives on the Scalia-Rehnquist (and later, Clarence Thomas) axis confused their archaic, contrived and dishonest jurisprudence with the "true meaning" of the Constitution, claiming that (read carefully, as this is no misprint) the original understanding of the original understanding of the Constitution is that the original understanding of the Constitution is the original understanding.


And they fully expected Souter, ever so grateful for an appointment to the Court, to take his marching orders and fall right in line.

Except that he didn't. Instead, David Souter demonstrated an independent mind, a respect for the Court's precedents, a much broader understanding of American politics and history than anyone seemed to give him credit for and a brilliant mind. The Washington political-media complex viewed Souter as some sort of benign Norman Bates, living with his mother up in a small town New Hampshire farm house, clueless to the world around him. Journalists were quick to describe not in 19th century terms, but in 1950 terms -- David Souter was a "bachleor," a word associated with Hugh Hefner's televised swingin' singles parties from the black and white era of television. Souter certainly didn't fit that description then and he doesn't now. It wouldn't be accurate to say that Souter was some sort of throwback to an earlier time when learned men traded high-minded ideas over candlelight and Madeira, since that time has never really existed except in the minds of historians wedded to the fairy-tale version of American history. On the current Court, Souter has outclassed them all, with the exception of 89 year-old John Paul Stevens. Get past those two and there is no genuine intellectual on the Court. Yes, there are some smart and exceptionally accomplished men and women (Ruth Bader Ginsburg especially). But genuine thinkers who idea of a good time is to read law, history, literature and politics until it's time to read more law, history, literature and politics? No. This has been a Court of appellate careerists whose relationship to and understanding of the world outside the formal boundaries of elite law schools, establishment law firms and the highest levels of government and politics has been, at best, marginal.

In 19 years on the Supreme Court, David Souter demonstrated that he belonged in the big leagues. Far from the free-spirited liberal that constitutional reactionaries have made him out to be, Souter was perhaps the most conservative, careful member of the Court. The decisions for which he was most criticized, usually dealing with Bill of Rights, the Fourteenth Amendment and the Commerce Clause, did little more than uphold Burger Court (or New Deal) precedent against the angry torch-bearing charge of Scalia and Thomas, who were and remain determined, in the 21st century version of the Lost Cause, to wield the Constitution as a pitchfork against modernity. Who knows how Souter would have decided the landmark decisions he chose to uphold rather than overturn? No one can possibly know how a man who was 14 years old when Brown v. Board of Education was handed down would have decided that case. Or, really, any other case for that matter. The human mind is too complex to assume that a particular character trait, education, assumed political identity and social background could possibly explain how someone whose judicial career began after a case was decided would have decided it when it was before him or her under totally different circumstances. Those questions make fun bar arguments, but have about as much intellectual value as a "how good would Derek Jeter have been in 1955?"-type debate. The answer is that nobody knows.

No, David Souter will not leave an opinion that fundamentally changed the direction of American constitutional law. He's in good company there, as very few justices do. Rather, he will be remembered as a thoughtful, modest and cerebral man who, in his own words, had "the world's best job in the world's worst city." There are many reasons why David Souter is my favorite Supreme Court justice. But that last sentiment describes perfectly the way I feel about my own career here. For that reason alone, David Souter will always remain a man to admire, respect and emulate.

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