Justice David Souter To Retire

225px-davidsouterAssociate Justice David Souter, 69, has announced that he will retire from the Court after 18 years. The announcement comes as a complete surprise because, at 69, Souter is one of the younger members of the Court and was not expected to retire before John Paul Stevens or Ruth Bader Ginsburg. He is twenty years younger than Stevens, who appears intent on remaining on the Court at least for the rest of this term.

Souter was appointed by President George H.W. Bush in 1990. He was part of a pattern of nominees selected in part due to his low profile and uncontroversial history. Like Sandra Day O’Connor, there was little for democrats to attack in Souter’s history. He had a powerful supporter in John Sununu, Bush’s chief of staff. Yet, he proved far more liberal than anyone in the GOP imagined — becoming a lightening rod for the right who would later insist on ideological purity and almost robotic loyalty in the selection of Clarence Thomas, John Roberts, and Sam Alito.

This will now be the first (but probably not the last) nominee for Barack Obama. The nominee sweepstakes will now begin. One interesting prospect would be Diane Wood, who serves on the United States Court of Appeals for the Seventh Circuit in Chicago and taught at the University of Chicago when Obama was on the faculty. Wood would be a nod to Obama’s Chicago roots and would add a second woman to the Court. She would also present a relatively easy confirmation.

Sonia Sotomayor on the Second Circuit would be more controversial. She has a reputation for being something of an overbearing and at times hostile judge — the complete opposite of Justice Souter. She has many critics on and off the court.

I personally like Wood, but I would prefer Harold Koh, the former Dean at Yale Law School who would be the first Asian-American on the Court. He is one of the most brilliant academics in America. He would be more controversial and has already been targeted in his current confirmation hearings for a position in the Administration. However, he would be a prize worth fighting for.

Cass Sunstein has also been suggested. However, civil libertarians would view his nomination as another disappointment and would likely oppose him. He was one of the earliest voices against an prosecution for war crimes and is viewed as favorable (or at least not particularly opposed) to some of the Bush policies on surveillance and other controversial national security programs.

The loss of Souter will be felt by Court watchers. I was once asked who I would keep on the Court if I had my druthers. I mentioned Souter because he was one of the few members who did not believe that he was anointed rather than appointed to the Court. Souter is a remarkably self-effacing and gentle person. He is universally liked by the other justices and Court staff. I particularly appreciated that, unlike some of his colleagues, Souter never sought public acclaim or attention. He worked very hard at getting decisions right. While he was more liberal than many Republicans wanted, he was not as predictable as some on the Court. He remained more of a jurist than a purist in his decision; trying to resolve issues without ideological flourishes or grandstanding.

I am not surprised about this retirement in one sense. Souter always maintained his personality and persona separate from the Court. He is an intensely private man. I always viewed him as the quintessential hardy East Coast Yankee stock: quiet, strong, and principled. While his departure will not result in a great shift on the Court or the loss of a dominant voice, his departure will remove someone who bought great civility and dignity to the Court. His was a reassuring voice at a time of shrill ideology and controversy. He will be remembered well for his time on the Court and is a towering example of how the first George Bush (who regretted his selection) inadvertently made the right decision for the wrong reason.

There is a very funny story about how Souter and Justice Breyer were routinely confused for one another. It was…a running joke at the Court that outsiders frequently mistook Souter and Breyer for each other. On one trip back to New Hampshire, a couple went up to Souter at a roadside dinner and mistook him for Breyer. Souter went along rather than embarrass them and correct. He was then asked, “Justice Breyer, what’s the best thing about being on the Supreme Court?” He reportedly thought deeply and responded, “Well, I’d have to say it’s the privilege of serving with David Souter.”

I would have to agree.

For the latest story, click here and here.

57 thoughts on “Justice David Souter To Retire”

  1. I’ve been looking for this poem by my favorite author for some time having remembered just enough to know it was a fitting tribute but not enough to find it. I now offer to a fine jurist and man:


    by Ralph Waldo Emerson, (1803 – 1882)

    Good-bye, proud world! I’m going home:
    Thou art not my friend, and I’m not thine.
    Long through thy weary crowds I roam;
    A river-ark on the ocean brine,
    Long I’ve been tossed like the driven foam;
    But now, proud world! I’m going home.

    Good-bye to Flattery’s fawning face;
    To Grandeur with his wise grimace;
    To upstart Wealth’s averted eye;
    To supple Office, low and high;
    To crowded halls, to court and street;
    To frozen hearts and hasting feet;
    To those who go, and those who come;
    Good-bye, proud would! I’m going home.

    I am going to my own hearth-stone,
    Bosomed in yon green hills alone—
    A secret nook in a pleasant land,
    Whose groves the frolic fairies planned;
    Where arches green, the livelong day,
    Echo the blackbird’s roundelay,
    And vulgar feet have never trod
    A spot that is sacred to thought and God.

    O, when I am safe in my sylvan home,
    I tread on the pride of Greece and Rome;
    And when I am stretched beneath the pines,
    Where the evening star so holy shines,
    I laugh at the lore and the pride of man,
    At the sophist schools and the learned clan;
    For what are they all, in their high conceit,
    When man in the bush with God may meet?

  2. How can the Judicial branch enter the 21st Century? One major way would be appoint a Native American woman. The tradition of the Court has been appointments by state, region and religion and now by ethnicity and race. There are now 7 white men, 1 black man and 1 white woman; 4 white Catholics, 1 Black Catholic, 2 white Jewish adherents and 2 white Protestants. 4 Harvard Law School grads, 2 grad from Yale Law School, 1 from Northwestern University, a Chicago law school and 2 from Stanford Law School. That is over 1/2 the Court educated in the Northeast, 1 in the Mid-West and 2 from the West Coast. The Court is heavily weighted towards married, white, male, Catholics from Harvard. With that in mind we need the opposite to balance the scales of justice. Who is left out? Black women, Native American women, Hispanic women, Asian Women. Where are the Japanese women and men from the post-WWII relocation camps? Where are the Chinese women and men from the Gold Rush days? Where are the Vietnamese women and men that migrated here after the Vietnam War? Where are the Pacific Islanders? Where are women and men from India?

    Why are there 19 states that have never had a SCOTUS justice? Those states are predominately from the Pacific Northwest and North Center of the nation that have always felt left out of the nation. A black woman from Wisconsin, Delaware, Rhode Island , Vermont or Florida. A Native American woman from West Virginia, Arkansas, Oklahoma, North and South Dakota or Nebraska. A Hispanic woman from New Mexico, Nevada, Montana, or Idaho. A woman from Asian decent from Hawaii, Alaska, Oregon or Washington.

    Then there are Amish, Mormons, Hindus, Muslims, Sikhs, Buddhists and Wiccans that have never been on the Court.

    Congress should look into the tradition of 1 Justice per 1 Circuit Court which changed after Lincoln was assassinated when the Court had 10 members to head the 10 Circuit Courts. This would mean that the Obama Administration through Congress could potentially increase the size of the Court to cover the 13 Circuit Courts of Appeals.

    Therefore the President would be unable logically to appoint a Hispanic woman unless she were not Catholic as that would tip the weight of the Court. He also would be unable logically to appoint a white woman as that would impede the future of the Court’s balance to have Japanese, Native American, Chinese, Vietnamese, Indian of Asian descent, Korean and Hispanic women on the Court to balance the white men.

  3. Bron98,

    Sorry, and your Sammy too.

    GeoII, has problems with the land for his Presidential Library. The Area is land locked and most of the homes are in the Million to 100 Million dollar range. Apparently SMU just said that they needed the land for development. The people who were forced to sell stated that they would not have sold it if they had known it was for GeoII library.

    SMU lost a number of Donors over it, a number of faculty have cut off donations as well.

    Then after all was found out, the suits commenced.

  4. Bron98,

    One can only hope? That Roberts who appears to look like a deer in the head light syndrome, could make Americas day.


    Just like a slight invasion of privacy should not be of a concern to law abiding Americans, such as these fine Jurist.

    I think that the reality show would be a success. Although I do not normally watch these shows, I would do that, I would make an exception.

    I have not seen anything on this Blawg about Bush and his Troubles at SMU. A Judge in Dallas has denied his Attorneys motions for Summary Disposition until he submits to a Deposition.

  5. AY:

    “I was thinkin, per chance, maybe we ought to help Scalia, Roberts and Thomas with a new coat of paint or stain.We can all just show up, be organized of course and paint it while they are at work. Won’t they be surprised when they get home.”


    We could call our little project “Habitat for the Hopeless.” Maybe get a reality show going called, “Extreme MakeAFuss-Over.”

  6. Anon:

    its only one s, its a little early for Uncle Jack isnt it?

  7. Looks like Justice Souter is a typical Yankee, my aunt was the female equivalent. Before she married my uncle she lived in her parents house in Washington, New Hampshire which is in the same area of New Hampshire as is Weare. She had multiple cats and no children, although some would argue that, as she was married to my uncle.

    The house actually had a 2 holer in the barn/garage attached to the house. Indoor plumbing, ahhh (they did have real facilities in the main house). Personally, I think those people rather strange. Probably due to some sort of hold over philosophy from the Pilgrims.

    As a side bar (is that the right terminology), I think we ought to start teaching that Jamestown was the true and proper beginnings of the US. A settlement for the purpose of commerce in the new world funded by investors wanting to reap obscene profits. Now that is a founding story I can embrace.

  8. esspo727272,

    Now, now Souter enjoys his “Right to Privacy” let him have it. I was thinkin, per chance, maybe we ought to help Scalia, Roberts and Thomas with a new coat of paint or stain.

    We can all just show up, be organized of course and paint it while they are at work. Won’t they be surprised when they get home.

  9. CEJ:

    Rustic and idyllic indeed, but would a coat of paint kill him?

  10. CEJ,

    Is it nice to know that even though you have a position in life, that you value who you are more than anything else. You are not afraid to pass the hat or torch in this case to a younger person. I am of the understanding that Jurist Souter can well afford a lavish lifestyle and chooses his humble home and simple life.

    Souter is a good man, I was surprised by a number of people that first of all that he was picked, secondly, that he stood up for the social conscience of the court.

    I have always said that we should have two Supreme Courts, One the Criminal Court of Last Resort and the Supreme Civil Court. I am not sure how to implement them nor all of the details but, it has always been a ideal.

  11. In today’s New York Times there is a view of Justice Souter’s humble home; it seems to me like an invasion of his privacy
    but at the same time it’s truly extraordinary (given his great position) to see how very simply he lives; and I admire him more for it. Best wishes Justice Souter on your retirement!


  12. You will see the next Justice of the US Supreme Court come from the Midwest. Maybe Iowa or possibility of Indianapolis, Indiana.

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