Many Americans may have missed on May 8 the passing of Justice David Souter, who retired from the Supreme Court in 2009, after a distinguished 20-year career on the nation’s high bench, but the oversight would be understandable. Except for a few forays into the public realm to participate in bar association events, judicial conferences at universities, programs seeking to elevate the importance of civic education in America, and participation in a few interviews, Justice Souter spent the bulk of these past 15 years enjoying a life of a solitude in the New Hampshire woods, with his beloved books.
There was much to like and admire about Justice Souter, who was appointed in 1990 by President George H. W. Bush to succeed William J. Brennan, and was just 69 years old when he retired from the court. Justice Harry Blackmun told a judicial conference that Souter, “perhaps, is the only normal person on the Supreme Court.” Souter never sought to make Washington, D.C. his home, nor was he seduced by the trappings of power and the allure of the social scene that have captured justices and politicians. He embraced a simple life and preferred the physical and cultural setting of New Hampshire—the serenity and beauty of its forests, hiking trails and, like fellow New Englander Henry David Thoreau, time for reading and reflection. Souter lived much of his life in his maternal grandparents’ home outside of Concord, but moved a few years ago because the structure of the house was not strong enough to bear the weight of his personal library. Justice Souter was reluctant to leave what was, for him, an idyllic lifestyle. Each September, before the commencement of the court’s annual term, Souter packed up his car, with just a few belongings in tow, and drove to his spartan Washington apartment, already looking forward to returning to New Hampshire after the high court had finished its business. When he retired, Justice Souter said there was more to life than life on the court, no matter how much he enjoyed his time on the bench with colleagues whom he enjoyed.
Souter, by every measure, worked exceptionally hard. He worked in his chambers late into the evening and spent his weekends in his office. Most days, he ate lunch—a cup of yogurt and an apple, including the core—at his desk. He was an intellectual powerhouse who wrote major opinions on issues of religion, First Amendment, privacy, abortion rights, federalism, race, and the structure of democracy. By historical standards, Souter was viewed as a moderate conservative jurist, committed to precedent and the rule of law. Like Justice Oliver Wendell Holmes, whose pragmatism he admired, Souter prized a modest, restrained role for the court, which urged judicial deference to the legislature. He developed as an undergraduate at Harvard, a special interest in Holmes’s jurisprudence, which was the focal point of his senior thesis. He continued to study Holmes after winning a Rhodes Scholarship to Oxford and honed his interest in a common law approach to the work of the court.
Souter set forth his judicial philosophy in a 1997 case: “It is here that the value of the common law method becomes apparent, for the usual thinking of the common law is suspicious of the all-or-nothing analysis that tends to produce legal petrification instead of an evolving boundary between the domains of old principles.” He added, “Common law method tends to pay respect instead to detail, seeking to understand old principles afresh by new examples and new counterexamples. The tradition of a living thing, albeit one that moves by moderate steps carefully taken.”
Legal scholars praised Justice Souter’s dissent in Bush v. Gore (2000), in which the court, in a 5-4 decision, halted Florida’s recount in the contentious presidential election. He believed that the court acted without authority when it voted to terminate the recount process. As a former state supreme court justice, Souter would have given the Florida Supreme Court more time to supervise the process.
Souter’s most notable opinion was likely his co-authorship in 1992, with Justices Anthony Kennedy and Sandra Day O’Connor of a ruling that reaffirmed Roe v. Wade, reflecting his strong commitment to precedent.
In a rare public interview in 2012, Souter warned that pervasive public ignorance about the Constitution and the structure of government presents a threat to democracy. “An ignorant people can never remain a free people,” Souter observed. “Democracy cannot survive too much ignorance.” In various ways, until his death, Souter extolled the virtues of civic education.
