David Souter, who died, age 85, a couple of weeks ago, in New Hampshire, was a justice on the Supreme Court from 1990 until he retired in 2009. When he was nominated by Geo. H.W. Bush to fill the vacancy created by William Brennan's retirement, the liberal line of attack depicted a bloodless intellectual with no understanding of life as lived by "ordinary Americans." Was he not, after all, a lifelong bachelor who lived alone in a rural farmhouse crowded with books and musical recordings? The subtext was the court’s decision in Roe, which the cloistered Souter was supposedly primed to overturn. Brennan had concurred with the 6-3 majority opinion in Roe.
At that time, especially, I had reasons to be unenthusiastic about an attack on bookish bachelors, and I was gratified when Souter ended up disappointing his supporters and delighting his former critics. In Casey v Planned Parenthood, he joined the majority in upholding the central finding of Roe. He also consistently opposed incursions upon the separation of church and state--he would not tolerate, for example, prayers before high-school football games. He was the kind of Episcopalian who, when the issue at hand was Christmas celebrations in public schools, directed attention to the sentiments of non-Christian students. He upheld the constitutionality of affirmative action policies. He dissented from the majority opinion in Bush v Gore. When he retired in 2009, one legal commentator called attention to his dissent in a case hardly anyone has heard of. A prison inmate who had been convicted of murder wanted to appeal and was told by a judge that he had until Feb. 27, 2004, to file his papers. He filed on Feb. 26. The judge, however, had erred: according to a statute about deadlines and the timing of actions, the papers should have been filed by Feb. 24. His case was thrown out, he appealed, and the matter eventually made it to the Supreme Court, which, in a 5-4 decision written by Justice Thomas, ruled that the inmate was shit-outta-luck: rules are rules, he shouldn't have relied upon the instruction of a judge. Souter, in his dissent, declared:
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.
"No more Souters!" became a rallying cry of wingnuts. In their eyes, his final sin was to retire in 2009, soon after the inauguration of President Obama, who replaced him with Sonia Sotomayor: a lesson in Supreme Court history that seems to have escaped the notice of Ruth Bader Ginsburg.
I enjoyed many of the anecdotes about Souter that were reported in stories about his death. In one, he was driving between Washington and his home in New Hampshire when he stopped for lunch at a roadside diner. One of the other customers, thinking he recognized Souter, approached and asked whether he wasn't a justice of the Supreme Court. Souter acknowledged that he was. "Yes," the man hurdled ahead, "you're Stephen Breyer! Say, what's the best part of your job?"
Souter thought for a moment before answering, "I'd probably have to say that it's been my greatest honor to have served alongside David Souter."