Balkinization  

Saturday, May 02, 2009

Justice Souter and Common Law Judging

Heather K. Gerken

As a former Souter clerk, here’s a take on Justice Souter’s legacy. A shorter version of this essay has been posted as part of a series of reflections published by the New York Times website.

Adam Gopnik once observed that "Paris is a struggle between its pompous official culture and its matchless . . . commonplace civilization." The aphorism applies even more clearly to the Supreme Court. Officially, it is an institution cloaked in formality, from the ceremonies of the First Monday to the grand generalities it invokes in its rulings. It is also an institution that takes itself extremely seriously, with its strongest opinions penned when it thinks another institution -- Congress in passing Commerce Clause legislation or the Religious Freedom Restoration Act, the Florida Supreme Court during the Bush v. Gore litigation -- is treading on the Court's privileges. Only the Court's pompous official culture could explain why the Justices in the majority of Bush v. Gore -- where the Court shut down the Florida recount in an opinion widely thought to be an embarrassment -- could have claimed that their intervention was an "unsought responsibility." This is not an institution cursed with self-awareness.

Souter, however, is at the core of the Court's matchless commonplace civilization, something that may explain why he dissented in each of the cases described above. He is a judge's judge, a courtly lawyer who manages to be both a serious intellectual and a pragmatic decisionmaker. He reads everything, he is open to new ideas and new arguments, and yet he is never swayed by the political winds that waft through the Court. He is the sort of judge who renews your faith in judging.

Justice Souter displays none of the pomposity that mars the Court's reputation. In person, he is one of the most charming, congenial people I know, one of the few Justices (or clerks) who knows the name of the guards and the cleaning staff. When Souter writes, his language can sometimes be ponderous, and it is decidedly old-fashioned. But his prose is never vapid or self-aggrandizing. He is the most powerful person I know well, and yet the most decent and humble. To this day, I still cannot fathom how a man of such integrity negotiated the Serbonian bog we call Washington.

Souter is the reason why some of us, familiar with the Court's many shortcomings, still believe in the institution. Our faith in the Court is built upon the common sense and decency of those behind the Court's official culture, on the idea that men and women, deeply steeped in the profession's traditions, can reach decisions worthy of the garb in which they are cloaked.

Souter perfectly understands the relationship between the Court's pompous official culture and its matchless commonplace civilization, the ways in which the grand generalities of the law are necessary to give weight to its common-sense intuitions. That is because, at his core, he is a common law judge. Common law judges toggle between principle and practice, theory and facts, general standards and specific holdings. Souter wrote of that tradition that "the judicial paradox [is] that we have no hope of serving the most exalted without respecting the most concrete." In doing so, he invoked the myth of Antaeus, the giant who drew his strength from contact with the earth and could not be defeated until Hercules had the wit to hold him aloft with his feet flailing uselessly in the sky.

With Souter's retirement, the Court loses its finest common law judge, a plain phrase for the highest of compliments.



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