PUBLISHED:September 25, 2009

The Souter Legacy

Sept. 25, 2009 — During a lunchtime program on Sept. 24, retired Supreme Court Associate Justice David H. Souter was recalled by three of his former clerks for his humanity and his meticulous approach to judging.

Duke Law professors Stuart Benjamin and Ernest Young and Professor Heather Gerken of Yale Law School all clerked for Souter during the October 1995 Supreme Court term. They shared their personal recollections of the justice with a student audience in a program sponsored by the Program in Public Law. All emphasized their enormous personal fondness for him.

“There’s a way in which the Souter clerk tribe may be among the most loyal tribes of law clerks,” said Gerken, the J. Skelly Wright Professor of Law at Yale. “We refer to him as ‘the boss’ as if there were no other bosses in our lives.”

All noted what Gerken characterized as Souter’s distinctive ability to “step outside” the bounds of his personal experience in exercising his judicial duties.

“You think that’s what you’d want in a judge, but it’s a very, very hard thing to do. We’re so much formed by our past experiences” she said. By way of example, Gerken, a scholar of voting rights and election law, recalled Souter’s dissent in one of a series of challenges to race-based electoral redistricting in North Carolina. Souter neither followed the “traditional conservative” position towards voting that cites race-blindness or the “knee-jerk” liberal position that will use any means to achieve integration in legislatures, she explained. Instead, he looked to the historical entry of different ethnic groups into electoral politics in large urban centers as a basis for his finding that majority-minority districts have a “dynamically integrative effect.”

“He said that over time, politics pulled these groups in and integrated them to the extent that ethnic identities fell away and lost their salience. That was the picture that Souter offered of majority-minority districts,” she said. “It’s a remarkably sophisticated view of race and redistricting. It’s a remarkably sophisticated view of politics, because it understood that there’s this inertial pull that comes from politics that can have an effect on the way that we understand race and voting and ourselves.” Describing Souter as a man “who self-consciously eschewed politics” and hailed from a relatively racially homogenous state, Souter’s stance was rather surprising, she added.

Benjamin and Young called Souter the best originalist on the Supreme Court. Recalling how the justice devoured historical materials relating to the 11th Amendment, an issue at the heart of Seminole Tribe of Florida v. Florida, Benjamin called Souter’s lengthy dissent in the case an example of “careful originalism.”

“It was actually going through and trying to figure out what’s the best interpretation of these historical materials in light of all the information that we can gather,” said Benjamin, Duke’s Douglas B. Maggs Professor of Law. “He had no predisposed answer. He really relied on an analysis of those materials to decide how he would come out in that case.”

Calling himself “probably one of the most conservative clerks that Justice Souter ever had,” Young suggested that Souter was also a conservative in very important ways, such as his respect for precedent.

“The original meaning of conservatism was reluctance to embrace radical change,” said Young, Duke’s Alston & Bird Professor of Law. Souter, he noted, demonstrated respect for precedents from all eras.

“If conservatism entails respect for history, then you ought not just talk about history being important, you ought to actually approach it with care and put in the time to get the history right,” said Young. Souter did that “better than anybody, really, on the Court,” he added.

All three former clerks noted Souter’s dedication to the craft of judging. “There is no judge I’ve ever met that has better judicial habits than Souter,” said Gerken. “He reads everything, he listens to both sides of the argument, he goes through the briefs, he does all of his own work.” He was not “clerk-driven,” they agreed, only reading his clerks’ bench memos after he had reviewed all briefs and records himself.

At his Senate confirmation, recalled Young, Souter stated that he admired John Marshall Harlan most among his predecessors on the Supreme Court. Harlan, Young observed, was frequently in the minority. “But everyone, left and right, admits that he did it — judging — right. And I think Justice Souter is going to have that kind of legacy. There’s going to be all kinds of spots when, if you want the best argument, you are going to go to a Souter opinion. It might not be a majority opinion, [but] if you want the best, most careful version of this opinion, you’ll go to Souter.”

What was most notable, the three agreed, was Souter’s kindness. “Even more than being a quick study, his ability to transcend the bounds of his experience was a function of his own humanity,” said Young, noting that he was a favorite among the U.S. marshals assigned to guard the justices because he knew all of their names, their children’s names, and their interests. “He cared about people. It was obvious and it was deeply, deeply reciprocated.”

“We all fell in love with him,” Gerken said. “We’d all throw ourselves under a train for him. And that is as good a measure of a justice as any other.”

“The Legacy of Justice Souter” can be viewed as a webcast.