David Souter: A Clerk’s View

Abstract

David Souter: A Clerk’s View KERMIT ROOSEVELT Many former Supreme Court clerks describe their clerkship as the best job of their lives. David Souter’s former clerks do too, though with what I believe is a greater than normal frequency. (As a former Souter clerk I confess to partiality.) But while Souter resembles other Justices in the devoted affection he inspires, he was in many other ways a very unusual presence at the Supreme Court. There are, ofcourse, the foibles for which Souter was well known. His frugality and simplicity are colorful by the standards of Supreme Court Justices, and so the media paid attention to the fact that he ate apples and yo­ gurt for lunch, wrote with a fountain pen, and disdained overcoats. It is true that Justice Souter abhors ex­ travagance and waste. He would read by nat­ ural light rather than use electricity even if he had to stand by the window to do so, and he once wrote me a note on a napkin I had left on my desk rather than use a fresh sheet ofpaper. But these characteristics are not simple eccentricities; they are indications of deeper currents in Souter’s character. Souter is ajudge, and a man, oftrue humility. He treated clerks, Court staff, and fellow Justices with the same respect, and he had a modest vision of the judge’s role, one rooted in the commonlaw methodology he brought to the Supreme Court. Law is important, Souter believes, indi­ vidualjudges less so. Satisfaction, he once told the Third Circuit judicial conference, comes less from great moments than from being part of the great stream of law. On his resigna­ tion, some writers complained that he did not leave bold doctrines or memorable phrases. But Souter does not see the judge’s role as working dramatic changes in the law or whip­ ping up passions outside the court. A great moment for a judge is not the dramatic break with precedent or the minting of a sparkling phrase; it is the quiet resistance against excess. There are moments of crisis, and some­ times judges must confront them. Souter has also spoken ofGettysburg, and ofthe men who found themselves facing Pickett’s charge. But the role he sees for courts in such times is not to wade in gleefully on one side or the other. It is to moderate, to be a safe place in society, as free of passion and partisanship as human nature allows. At the clerk reunion after his 8 JOURNAL OF SUPREME COURT HISTORY David Souter had only served for a few months as a federal judge when President George H. W. Bush selected him to fill the Supreme Court seat vacated by Justice William Brennan. retirement was announced, he told us the story of a New England ancestor who had stopped the witch trials of Salem from spreading to his town, refusing to issue a warrant against an accused girl with the simple words “We will have none of that here.” It is not a lofty phrase or an ambitious theory, but it is a pretty good judicial philosophy, and if we look back at Souter’s notable decisions, I think we will see it has explanatory power. When the time found him, he stood against extremism and held the line. Souter was also unusual in his fondness for New Hampshire and distaste for Washing­ ton. No Justice was more eager to leave the capital at the end ofthe Term, and speaking to the Justice when he was in New Hampshire, you could almost hear over the phone line the pleasure and renewal he drew from its simple calm. This, too, was indicative of deeper cur­ rents. Who would not enjoy the social status and accolades accorded Supreme Court Jus­ tices? Someone who thought they got in the way of real personal interaction. Because of his distaste for the events and parties of Wash­ ington society, Souter was often mistaken for an awkward recluse. But his clerks know him as a warm and witty man who most afternoons would emerge from Chambers to take a cup of coffee and put us in stitches with anec­ dotes about...