Retired Justice David Souter has Died

 

Pix credit New York Times

 

 In a Press Release, the U.S. Supreme Court offices today reported the death of former Justice David Souter this way:

Retired Associate Justice of the Supreme Court of the United States, David H. Souter, died peacefully yesterday at home in New Hampshire. He was 85 years old. Justice Souter was appointed to the Court by President George H.W. Bush in 1990, and retired in 2009, after serving more than 19 years on the Court.

Chief Justice John G. Roberts, Jr. said of Justice Souter: “Justice David Souter served our Court with great distinction for nearly twenty years. He brought uncommon wisdom and kindness to a lifetime of public service. After retiring to his beloved New Hampshire in 2009, he continued to render significant service to our branch by sitting regularly on the Court of Appeals for the First Circuit for more than a decade. He will be greatly missed.”

Justice Souter was born in Melrose, Massachusetts, on September 17, 1939. He graduated from Harvard College, from which he received his A.B. After two years as a Rhodes Scholar at Magdalen College, Oxford, he received an A.B. in Jurisprudence from Oxford University and an M.A. in 1963. After receiving an LL.B. from Harvard Law School, he was an associate at Orr and Reno in Concord, New Hampshire, from 1966 to 1968, when he became an Assistant Attorney General of New Hampshire. In 1971, he became Deputy Attorney General and in 1976, Attorney General of New Hampshire. In 1978, he was named an Associate Justice of the Superior Court of New Hampshire, and was appointed to the Supreme Court of New Hampshire as an Associate Justice in 1983. He became a Judge of the United States Court of Appeals for the First Circuit on May 25, 1990.

In addition to hearing cases on the First Circuit, Justice Souter participated in civics education curriculum reform efforts in New Hampshire during his retirement.

The Supreme Court institutional Press Release release was a fine example of the type, as these  go, and it could well have suited the retired Justice for its understatement; especially from a Justice who might well have been thought to have wanted nothing from them at all, even their recollection of him. But it hardly captured the flavor and life of one of the most interesting justices of the Supreme Court of his generation.  The reporting of the man by the herd (the official and derivative press organs) all have churned out variations of the mundane--the Republican "country" official, prosecutor and judge who when elevated to the Supreme Court disappointed the political party that moved forward  by becoming aligned with what passed for the "liberal" wing of the court during the period of its transition from its 1950s-70s  reformist heyday to whatever it is now. And then there was the resignation. (See, e.g., the reporting of the New York Times for a very nice version of this standard line).  That sad and reductionist line hardly captures a complex mind and a quirky jurisprudence of a person who preferred his writing unencumbered by a ruling ideology.  

If reductionism is necessary then I think the Nation's reporting got it right when it wrote, simply, "Souter liked facts!

Perhaps nothing captures the spirit of the Justice than some of his words, or rather the premises the words convey beyond the specific cases. Whatever one might think of the decision place where those premises took the Justice in a specific setting--to love facts does not guarantee that one will be in accord with their (1) meaning or (2) application. But it does mean that, however one gets there, one does not start from the fantasy or the fantastic that sometimes substitutes for the foundations of reason(ing). But as Justice Souter sometimes reminded those who read him with care that fantasy appears to be as solid a foundation as anything else in the current stage of the historical development of the Republic, where fantasy is understood in its more ancient sense of making something visible, like phantoms, from the Greek notion of phantasia as the manifestation of a "power of imagination; appearance, image, perception". He might well have regretted that to be in the accord with the times one must embrace the fantastic.

A few of my favorites passages from the Justice's opinions follow:

The Court’s usual insistence on resisting temptations to convert itself into a trial court and on remaining a court of review is not any mere procedural nicety, and my objection to turning us into a district court here does not hinge on a preference for immutable procedural rules. Respect for our role as a reviewing court rests, rather, on recognizing that this Court can often learn a good deal from considering how a district court and a court of appeals have worked their way through a difficult issue. It rests on recognizing that an issue as first conceived may come to be seen differently as a case moves through trial and appeal; we are most likely to contribute something of value if we act with the benefit of whatever refinement may come in the course of litigation. And our customary refusal to become a trial court reflects the simple fact that this Court cannot develop a record as well as a trial court can. If I were a trial judge, for example, I would balk at deciding on summary judgment whether an Establishment Clause violation would occur here without having statements of undisputed facts or uncontradicted affidavits (Good News Club v. Milford Central School, 533 US 98 (2001); Souter, J. dissenting)

If the divisiveness permitted by today’s majority is to be avoided in the short term, it will be avoided only by action of the political branches at the state and national levels. Legislatures not driven to desperation by the problems of public education may be able to see the threat in vouchers negotiable in sectarian schools. Perhaps even cities with problems like Cleveland’s will perceive the danger, now that they know a federal court will not save them from it. My own course as a judge on the Court cannot, however, simply be to hope that the political branches will save us from the consequences of the majority’s decision. Everson’s statement is still the touchstone of sound law, even though the reality is that in the matter of educational aid the Establishment Clause has largely been read away. True, the majority has not approved vouchers for religious schools alone, or aid earmarked for religious instruction. But no scheme so clumsy will ever get before us, and in the cases that we may see, like these, the Establishment Clause is largely silenced. I do not have the option to leave it silent, and I hope that a future Court will reconsider today’s dramatic departure from basic Establishment Clause principle. (Zelman v. Simmons-Harris, 536 U.S. 639 (2002) Souter, J., dissenting)

Whereas Justice Scalia sees these developments as sufficient to close the door to further independent judicial recognition of actionable international norms, other considerations persuade us that the judicial power should be exercised on the understanding that the door is still ajar subject to vigilant doorkeeping, and thus open to a narrow class of international norms today. * * * We think an attempt to justify such a position would be particularly unconvincing in light of what we know about congressional understanding bearing on this issue lying at the intersection of the judicial and legislative powers. The First Congress, which reflected the understanding of the framing generation and included some of the Framers, assumed that federal courts could properly identify some international norms as enforceable in the exercise of §1350 jurisdiction. We think it would be unreasonable to assume that the First Congress would have expected federal courts to lose all capacity to recognize enforceable international norms simply because the common law might lose some metaphysical cachet on the road to modern realism. Later Congresses seem to have shared our view. The position we take today has been assumed by some federal courts for 24 years, ever since the Second Circuit decided Filartiga v. Pena-Irala, 630 F.2d 876 (CA2 1980), and for practical purposes the point of today’s disagreement has been focused since the exchange between Judge Edwards and Judge Bork in Tel-Oren v. Libyan Arab Republic, 726 F.2d 774 (CADC 1984), Congress, however, has not only expressed no disagreement with our view of the proper exercise of the judicial power, but has responded to its most notable instance by enacting legislation supplementing the judicial determination in some detail. See supra, at 34 (discussing the Torture Victim Protection Act). While we agree with Justice Scalia to the point that we would welcome any congressional guidance in exercising jurisdiction with such obvious potential to affect foreign relations, nothing Congress has done is a reason for us to shut the door to the law of nations entirely. It is enough to say that Congress may do that at any time (explicitly, or implicitly by treaties or statutes that occupy the field) just as it may modify or cancel any judicial decision so far as it rests on recognizing an international norm as such. (Sosa v. Alvarez-Machain, 542 US 692 (2004), Alien Tort Statute and the Federal Tort Claims Act.)