Tribute to Justice Souter

Abstract

Tribute to Justice Souter SANDRA DAY O’CONNOR When the U.S. Supreme Court Justices took their seats at the beginning of the 2009 Term, the Bench looked different. Gone from the Bench, after nineteen years, was David H. Souter. He returned to his home in New Hampshire, a state he likes enormously. Justice Souter will be missed by his former colleagues and by advocates before the Court, by legal scholars nationwide and by all who follow the Court’s work and activities. I was privileged to serve on the Court with Justice Souter for more than fifteen years. He was an admirable Justice and is a cherished friend. While serving on the Court, Justice Souter produced 157 majority opinions, 121 dissenting opinions, and 83 concurring opin­ ions. He served as the Circuit Justice for both the First and the Third circuits. His opinions were always thoroughly researched and writ­ ten, with full explanations of the facts, the is­ sues, and the governing principles. He cut no corners and explained his reasoning in depth. His writing was evidence ofhis scholarly nature. He was, afterall, a HarvardLaw School graduate, a Rhodes Scholar, a former New Hampshire trial court judge, a New Hamp­ shire supreme court justice, and a judge on the First Circuit Court of Appeals. His opin­ ions, written while he was on the Supreme Court ofthe United States, were as methodical as they were measured. Justice Souter’s con­ curring opinion in Washington v. Gluckshurg} captured his judicial philosophy nicely. He wrote: “[Tjhe usual thinking of the common law is suspicious ofthe all-or-nothing analysis that tends to produce legal petrification instead of an evolving boundary between domains of old principles. Common-law method tends to pay respect instead to detail, seeking to under­ stand old principles afresh by new examples and new counterexamples. The ‘tradition is a living thing,’ albeit one that moves by mod­ erate steps carefully taken.”2 His careful ap­ proach to opinion-writing meant that he very seldom felt compelled to make a major alter­ ation to one of his circulating opinion drafts because he wrote such thorough explanations in his original draft opinions. Justice Souter was an especially treasured colleague on the Bench. He has a delightful sense ofhumor and a natural wit that often en­ tertained his colleagues. He has a remarkable memory for details ofconversations and events going back a great many years. The Justices 2 JOURNAL OF SUPREME COURT HISTORY Sandra Day O'Connor served with David Souter on the Bench for more than fifteen years. They are pictured here at Souter's oath-of-office ceremony in 1990, shortly after the New Hampshire Justice was confirmed. often have lunch together in the Justices' din­ ing room on days of oral argument or confer­ ence. Justice Souter would eat his customary cup of yogurt and contribute to the conver­ sation with the occasional story, always told with humor and vivid detail. One day at lunch, someone mentioned a family wedding one of the Justices had recently attended. Justice Souter said the discussion reminded him of a story told to him by Justice William Brennan’s son. He told us that Justice Brennan’s father was, at the time, Democratic Party “boss” in New Jersey. His granddaughter got married to a young man whose grandfather was the Re­ publican Party “boss” in New Jersey. Some­ one asked Justice Brennan’s father, “Doesn’t it bother you that your granddaughter is marry­ ing the grandson ofyour archrival?” “No,” said Justice Brennan’s father. “You have to remem­ ber that we always stood shoulder to shoulder against the interests of the people.” From time to time, I would have reason to stop by Justice Souter’s Chambers to inquire about some Court matter. He would always cordially welcome my unannounced visit to his Chambers. Entering his Chambers was unlike entering any other Chambers at the Court. He disliked bright lights and his office was always rather dark. Only some natural light from win­ dows illuminated his personal office. Every part ofthe floor space between his desk and the couch was piled high with books. Often even the seats on the couch, save...