Perhaps lost in all the flurry and hubbub of yesterday's final Supreme Court decisions was the fact that yesterday marked the last day of public service for Justice David Souter, who if he didn't leave already is probably right now on the road from D.C. back to his New Hampshire home.
"STOP SOUTER OR WOMEN WILL DIE," read the signs at some of the protests during his confirmation hearings, and given that he was a Bush I nominee and little was known about him it was a not-unreasonable assumption that those who selected him knew more than the rest of us about the jurisprudential views of this Granite State bachelor whose lunch every day consisted of a plain yogurt and whole apple, including the core.
Thank goodness we were wrong, and thank goodness key backers John Sununu and Warren Rudman were was so wrong about him too. We knew this within two years after his confirmation, when he and Justices O'Connor and Kennedy co-authored the lead opinion in Planned Parenthood v Casey affirming a woman's the right to choose just when all of us assumed the Reagan Revolution would succeed in overturning Roe. They wrote, in part:
... [O]verruling Roe's central holding would not only reach an unjustifiable result under principles of stare decisis, but would seriously weaken the Court's capacity to exercise the judicial power and to function as the Supreme Court of a Nation dedicated to the rule of law. To understand whythis would be so it is necessary to understand the source of this Court's authority, the conditions necessary for its preservation, and its relationship to the country's understanding of itself as a constitutional Republic.
The root of American governmental power is revealed most clearly in the instance of the power conferred by the Constitution upon the Judiciary of the United States and specifically upon this Court. As Americans of each succeeding generation are rightly told, the Court cannot buy support for its decisions by spending money and, except to a minor degree, it cannot independently coerce obedience to its decrees. The Court's power lies, rather, in its legitimacy, a product of substance and perception that shows itself in the people's acceptance of the Judiciary as fit to determine what the Nation's law means and to declare what it demands.
The underlying substance of this legitimacy is of course the warrant for the Court's decisions in the Constitution and the lesser sources of legal principle on which the Court draws. That substance is expressed in the Court's opinions, and our contemporary understanding is such that a decision without principled justification would be no judicial act at all. But even when justification is furnished by apposite legal principle, something more is required. Because not every conscientious claim of principled justification will be accepted as such, the justification claimed must be beyond dispute. The Court must take care to speak and act in ways that allow people to accept its decisions on the terms the Court claims for them, as grounded truly in principle, not as compromises with social and political pressures having, as such, no bearing on the principled choices that the Court is obliged to make. Thus, the Court's legitimacy depends on making legally principled decisions under circumstances in which their principled character is sufficiently plausible to be accepted by the Nation.
And it was this humility about the judicial role to which Justice Souter returned in one of his final opinions, dissenting in the right-to-DNA-testing case (which I've edited lightly):
There is no denying that the Court is correct when it notes that a claim of right to DNA testing, post-trial at that, is a novel one, but that only reflects the relative novelty of testing DNA, and in any event is not a sufficient reason alone to reject the right asserted. Tradition is of course one serious consideration in judging whether a challenged rule or practice, or the failure to provide a new one, should be seen as violating the guarantee of substantive due process as being arbitrary, or as falling wholly outside the realm of reasonable governmental action. See Poe v. Ullman, 367 U. S. 497, 542 (1961) (Harlan, J., dissenting). We recognize the value and lessons of continuity with the past, but as Justice Harlan pointed out, society finds reasons to modify some of its traditional practices, and the accumulation of new empirical knowledge can turn yesterday’s reasonable range of the government’s options into a due process anomaly over time.
As for determining the right moment for a court to decide whether substantive due process requires recognition of an individual right unsanctioned by tradition (or the invalidation of traditional law), I certainly agree with the Court that the beginning of wisdom is to go slow. Substantive due process expresses the conception that the liberty it protects is a freedom from arbitrary government action, from restraints lacking any reasonable justification, and a substantive due process claim requires attention to two closely related elements that call for great care on the part of a court. It is crucial, first, to be clear about whose understanding it is that is being taken as the touchstone of what is arbitrary and outside the sphere of reasonable judgment. And it is just as essential to recognize how much time society needs in order to work through a given issue before it makes sense to ask whether a law or practice on the subject is beyond the pale of reasonable choice, and subject to being struck down as violating due process.
It goes without saying that the conception of the reasonable looks to the prevailing understanding of the broad society, not to individual notions that a judge may entertain for himself alone, and in applying a national constitution the society of reference is the nation. On specific issues, widely shared understandings within the national society can change as interests claimed under the rubric of liberty evolve into recognition, see Griswold v. Connecticut, 381 U. S. 479 (1965) (personal privacy); Lawrence v. Texas, 539 U. S. 558 (2003) (sexual intimacy), see also Washington v. Glucksberg, 521 U. S. 702, 752 (1997) (Souter, J., concurring in judgment), or are recast in light of experience and accumulated knowledge, compare Roe v. Wade, 410 U. S. 113 (1973) , with Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833 (1992) (joint opinion of O’Connor, Kennedy and Souter, JJ.).
Changes in societal understanding of the fundamental reasonableness of government actions work out in much the same way that individuals reconsider issues of fundamental belief. We can change our own inherited views just so fast, and a person is not labeled a stick-in-the-mud for refusing to endorse a new moral claim without having some time to work through it intellectually and emotionally. Just as attachment to the familiar and the limits of experience affect the capacity of an individual to see the potential legitimacy of a moral position, the broader society needs the chance to take part in the dialectic of public and political back and forth about a new liberty claim before it makes sense to declare unsympathetic state or national laws arbitrary to the point of being unconstitutional. The time required is a matter for judgment depending on the issue involved, but the need for some time to pass before a court entertains a substantive due process claim on the subject is not merely the requirement of judicial restraint as a general approach, but a doctrinal demand to be satisfied before an allegedly lagging legal regime can be held to lie beyond the discretion of reasonable political judgment.
It takes a lot for a man to decide at the age of 69, with lifetime tenure in an incredibly powerful job, to decide he's had enough and would rather go home and go hiking.
I can't even try to summarize all of Justice Souter's career in a single blog post, but I do want to leave you with two stories about him from Jeffrey Toobin's book THE NINE that speak to what kind of man he is:
[Justice] O'Connor had a more direct agenda with Souter. She wanted to get him married off. According to her biographer Joan Biskupic, O'Connor boasted about her matchmaking skills, claiming she had once been known as the "Yenta of Paradise Valley," her posh neighborhood in Phoenix.... Over the years, practically everyone Souter knew in Washington, including First Lady Barbara Bush, tried to fix him up. None succeeded. One of his fellow justices once prevailed on Souter to take a woman out to dinner, and she reported back that she thought the evening had gone very well -- until the end. Souter took her home, told her what a good time he had, then added: "Let's do this again next year."
It was ... a running joke at the Court that outsiders frequently mistook Souter and Breyer for each other. No one could really understand why this happened, because the two bore little resemblance. One day when Souter was making his usual solo drive from Washington to New Hampshire, he stopped for lunch in Massachusetts. A stranger and his wife came up to him and asked, "Aren't you on the Supreme Court?"
Souter said he was.
"You're Justice Breyer, right?" said the man.
Rather than embarrass the fellow, Souter simply nodded and exchanged pleasantries, until he was asked an unexpected question.
"Justice Breyer, what's the best thing about being on the Supreme Court?"
The justice thought for a while, then said, "Well, I'd have to say it's the privilege of serving with David Souter."
edited by Adam: Per some comments below and my own research, I'm sufficiently persuaded that Warren Rudman knew exactly what we'd be getting in a Justice Souter, and have therefore deleted my reference to the contrary above.