149. David Hackett Souter (1939–2025)
Some reflections on a justice who hated Washington; hated being the center of attention; had an outsized effect on future Supreme Court nominations; and took his job as a judge incredibly seriously.
Welcome back to “One First,” a weekly newsletter that aims to make the U.S. Supreme Court more accessible to all of us. I’m grateful to all of you for your continued support, and I hope that you’ll consider sharing some of what we’re doing with your networks.
As has been true every week since we launched in November 2022, each Monday morning, I’ll be offering an update on goings-on at the Court (“On the Docket”); a longer introduction to some feature of the Court’s history, current work, or key players (“The One First ‘Long Read’”); and some Court-related trivia. We also just launched “First One,” the weekly bonus audio companion to the newsletter for paid subscribers, with the latest episode dropping last night.
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I’ve gone back and forth about the focus of this week’s “Long Read.” I already wrote about Stephen Miller’s troubling suggestion that President Trump might try to suspend habeas corpus in response to a slew of adverse court rulings in immigration cases. And although I think there’s still more to say about this week’s oral argument in the birthright citizenship cases (which is really a referendum on “nationwide” injunctions), I’ve said a lot already.
Instead, I wanted to take a minute to step back from the events of the present and reflect on the passing of retired Justice David H. Souter on Thursday, at the age of 85. Folks who don’t follow the Court closely (or who didn’t until recently) may not know much about Souter—who sat on the Court from 1990 to 2009. But for a host of reasons I’ll elaborate upon below, he was the sitting justice I most admired when I was in law school (2001–04), and the one for whom I most wanted to clerk afterwards (alas). Indeed, although Souter is often pilloried on the right for having the temerity to not vote the way Republicans expected when he was nominated by President George H.W. Bush, it seems to me that Souter was a model for what we should all want in a justice—someone who took the job, but not himself, exceptionally seriously.
But first, the news.
On the Docket
Other than last Monday’s regular (and news-light) Order List, the only formal action from the full Court last week was Tuesday’s grant of the Trump administration’s request to put back into effect its ban on military service by transgender individuals. The unexplained order came over unexplained public dissents from Justices Sotomayor, Kagan, and Jackson. Interestingly, this was the first Trump-related emergency application in which the Court didn’t explain itself—after a (to me, laudatory) pattern in which the Court had started to provide explanations in the other Trump cases. (It was also the first Trump-related ruling since January that, at least publicly,1 appears to have split the Court straight down ideological lines.)
Turning to this week, we know two things for sure: On Thursday, the Court is expected to hand down one or more decisions in argued cases starting at 10:00 ET. And as soon as it’s done, it will hear oral argument on the Trump administration’s applications for emergency relief in the birthright citizenship cases. It also stands to reason that, at some point, the Court will clear out more of the (growing) backlog of high-profile emergency applications, most of which I covered in last week’s issue. (The Trump administration added to the backlog Thursday—when it filed its 14th emergency application, in a case about immigration parole.)
Finally, one note on one of those pending applications: In Wilcox (the case about whether statutes barring the president from firing members of the NLRB or MSPB without cause are unconstitutional), the “administrative stay” from Chief Justice Roberts (temporarily allowing Trump to fire Cathy Harris and Gwynne Wilcox while the full Court considers whether to stay lower-court rulings saying he couldn’t) has now been in place for 33 days—a remarkably long time for what’s supposed to be a “temporary” pause. One possibility is that the full Court is waiting for the D.C. Circuit oral argument on the merits in these cases—which is scheduled for this Friday (before Katsas, Walker, & Pan, JJ.). I’m not sure why the full Court would be waiting for that development, but I’m also unsure why it’s taking this long to do … anything else … in these cases.
Regardless, it’s going to be an unusually busy mid-May week at the Court.
The One First “Long Read”: The Souter “Mistake”
Since news of retired Justice David Souter’s passing came out Friday morning, folks have been sharing a lot of telling anecdotes about the Court’s 105th justice. One of the most well-known is the exchange in which a fellow diner at a Massachusetts restaurant mistook him for Justice Breyer, and asked him “what’s the best thing about being on the Supreme Court?” Souter’s response: “I’d have to say it was the privilege of serving with David Souter.”
But most stories about Souter contain less mirth, and more of a focus on how seriously he took his job. For instance, this one is from a LinkedIn post from his former clerk (and Boston College law professor) Kent Greenfield:
when the Court considered last-minute death row appeals, often late at night, he refused to inform himself about the votes of other justices until he had made up his own mind. We clerks could be sitting with him as he thought through the case, knowing that the other justices had voted in a certain way and that his vote would not affect the outcome. But he did not want to know. He required of himself the kind of integrity and thoughtfulness that he would have wanted if he had been the claimant rather than the judge.
Souter is often caricatured by folks on the right—who never forgave him for not being the reliable conservative vote that John Sununu and Warren Rudman had famously promised he would be when they convinced President Bush to nominate the unknown New Hampshire judge to succeed Justice William Brennan in 1990. Thus, writing in the New York Times shortly after Souter’s 2009 retirement, Ed Whelan couldn’t think of any opinions Souter had written except for his role in the joint opinion in Planned Parenthood v. Casey. “No more Souters” became the mantra for all subsequent Supreme Court nominations by Republican presidents—an attitude that led directly to the sinking, by conservatives, of President George W. Bush’s 2005 nomination of Harriet Miers to succeed Justice Sandra Day O’Connor (who was instead replaced by Justice Alito).
Leaving aside that Souter wrote plenty of significant majority opinions (and some less significant but still wonderful ones) that any true Court watcher would remember, his dissents tended to take analytical sledgehammers to the excesses of the Rehnquist Court’s conservative majority—not just in high-profile cases like Bush v. Gore, but in the Court’s atextual and profoundly misbegotten foray into state sovereign immunity in the mid-1990s. (I still teach his dissents in Seminole Tribe and Alden v. Maine.) Indeed, I don’t think it’s an exaggeration to suggest that Souter’s dissents in the 5-4, ideologically divided rulings of the Rehnquist Court tend to stand out more than those of Justices Stevens, Ginsburg, and Breyer.
His analytical persuasiveness aside, what always stood out to me about Souter was just how seriously he took his job as a justice—and a judge. A lot of folks have highlighted his remarks at Harvard’s 2010 commencement (for which—don’t tell him—there’s video!).2 But I’ve always been even more moved by his tribute to Gerald Gunther, published in the Stanford Law Review in December 2002 (when I was a 2L, and, more importantly, when Souter was still in the midst of his tenure on the Court). Souter used the tribute to Gunther to reflect on Gunther’s (remarkable) biography of Judge Learned Hand—still the best judicial biography I’ve ever read, not just because of what one learns about the celebrated judge, but also because of what one learns about judging:
Its lesson begins in a biographical paradox that I could never have guessed at. When I was in college, I saw Learned Hand on the street one afternoon, looking the way his photographs showed him, and seeming indeflectable as he walked along, like a granite statue moving down the sidewalk. Later I read some of his opinions, which struck me as being all of a piece with the figure I'd caught sight of, marshalling law and fact with a confidence nothing short of command. Then, after many years, I read Gerry's book and found out what Hand was actually like: indisposed to call the wall facing him black or white, judging with a diffidence near to fear sometimes, deciding a case only because he had no escape. So much for icons, the account seems to say, and partway through reading it we're apt to think, what a misalignment of mind and duty.
Then we read some more, and the man and the job seem to reconcile, like a split image moving back into single focus, and they end up in the fit we'd always believed was theirs. The secret of their unity, Gerry tells us, lies in the legendary craftsmanship, which became Hand’s bridge from doubt to decision. The chronic evenhandedness compelled the judge to come out and say what he was really choosing between; the torment of competing reasons forced him to face the very facts that placed his principles in tension; and not just face the facts, but heft them and feel their weight until finally the needle of his mind moved off dead center.
Slowly, though, the account of judge and man and their mutual integrity takes on a companion theme, not about what Hand's judging was, but about what anyone's judging ought to be, a theme not so much stated as suggested by the story's form and the way Gerry set himself to write it. The evidence he places out in plain sight; his narrative moves like the unhurried man I saw walking a Cambridge street; his story has no shortcuts, no stretches lost from sight behind some edifice of generality. As the pages mount up, Gerry's deliberate writer's pace, and his relentless honesty in testing evidence and treating issues, create a kind of atmosphere that gathers around the storyline, until at last the book itself is seen to typify the very judging it describes. Gerry has studied a life and written a book, the way Learned Hand harrowed a record and resolved a case, and as that understanding emerges in our minds, it comes with a companion question: If Hand is the prototype good enough for Gerry Gunther, why not for us, why not for every judge who reads the book?
There's no mistaking Gerry's answer, that Learned Hand's necessities are every judge's common obligations: suspicion of easy cases, skepticism about clear-edged categories, modesty in the face of precedent, candor in playing one worthy principle against another, and the nerve to do it in concrete circumstances on an open page. Gerry is still Learned Hand's old law clerk urging us to hunt for “‘general guidance from close examination of the particular,”’ telling us that details spark the intuition and real judging gets done from the ground up.
So, having started with the paradox of Learned Hand, we come to the judicial paradox, that we have no hope of serving the most exalted without respecting the most concrete. Judicial duty points to Blake's grain of sand. Seeing that saved Learned Hand; it is what the old common law judges understood, and what Antaeus knew, whose strength never failed him until he lost his touch with the earth.
The lesson has been passed along to us by a man who came to America in a perilous time, and it has the capacity to encourage us now in our own time of peril, with our safety threatened and our constitutional sense of ourselves debated. While I can't tell what I will do with the dilemmas already on their way to my Court,[3] I think I will know enough to treat with them by being Gerry Gunther's kind of judge, by hewing to the common law habits he esteemed and espoused. Don't worry that you haven't got the answers up your sleeve, Gerry calls over his shoulder; just decide the cases when they come along. The lesson is so simple.
16 years after his retirement from the Court at the unusually young age of 69, the phrase best associated with the late justice is almost certainly “No more Souters.” As someone who spends a lot of time thinking about long-term (and not just short-term) Court reform, it strikes me that “more Souters” would actually be a damned good place to start.
SCOTUS Trivia: The Court’s Longest Retirements
Justice Souter’s passing last Thursday came less than 18 months after retired Justice Sandra Day O’Connor passed away in December 2023, at the age of 93. That got me thinking about the last time that two justices or former justices passed away in even shorter succession.
The answer is 1980—when retired Justice William O. Douglas passed away on January 19, and retired Justice Stanley Reed passed away on April 2. Although Douglas had retired just over four years earlier (in November 1975), Reed had been retired from the Court since February 1957(!).4 Being the nerd that I am, this led me to wonder whether Reed had lived the longest of any justice after leaving the Court.
It turns out that the answer is no. To my surprise, the justice to live the longest after leaving the Court was the first Chief Justice—John Jay. Jay resigned as Chief Justice in 1795 to become Governor of New York. When President Adams nominated Jay to become Chief Justice again in 1801 (and the Senate confirmed him), Jay passed—opting instead to retire to his farm in Westchester. Jay lived another 28 years—passing away on May 17, 1829, 33 years and 322 days after stepping down from the Court.
Suffice it to say, I don’t think either of the currently living retired justices (Kennedy and Breyer) are likely to catch him.
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A reminder that we don’t know the vote count respecting orders unless the process of elimination tells us. Here, with (only) three public dissents, it’s at least possible that a fourth justice voted against the stay behind the scenes but chose not to note that vote publicly.
Souter was perhaps the staunchest critic of allowing cameras into the Supreme Court. Testifying at the annual House Appropriations hearing into the Court’s budget in 1993, Souter suggested that “the day you see a camera come into our courtroom, it's going to roll over my dead body.”
This is almost certainly a reference to the post-9/11 terrorism cases, three of which the Court would hear during the next (October 2003) Term.
For a time, Reed had held the rather obscure record of “longest-lived Supreme Court justice,” passing away at the age of 95. But Justice John Paul Stevens surpassed Reed’s mark in 2015, before passing away in 2019 at the age of 99.
"16 years after his retirement from the Court at the unusually young age of 69, the phrase best associated with the late justice is almost certainly “No more Souters.” As someone who spends a lot of time thinking about long-term (and not just short-term) Court reform, it strikes me that "more Souters" would actually be a damned good place to start."
Well said.
And I think this concept is applicable well beyond judging -- into day-to-day life. Enough with the "agendas" and the "axes to grind." Confront each set of facts with integrity and rigorous reasoning -- and go where that takes you.
Being a practicing trial court lawyer and not a scholar, I can’t offer an appreciation of Justice Souter’s work. What I can offer, however, is an appreciation for his independence and somewhat ascetic mode of living. I seem to remember one of the Justices of the Supreme Court — Scalia maybe? — telling us that judges are not monks. But in my experience, the best judges are often a bit monkish, and sometimes more than a bit. This is so not just for the obvious reason that palling around with rich people who buy you nice things raises suspicion about your impartiality not just in cases involving your friends, but in all cases involving rich people (who might one day become your friends), but because a judge, like the monk in his cell, serves mankind best by serving his god, by isolating himself from others while following a rigorous discipline with humility and sincerity. Judging isn’t a job for men and women who don’t love their fellows, and a misanthrope cannot be a good judge, but neither is it a job for those who want to live in the limelight, or to be universally loved. Justice Souter, it seems to me, struck the right balance.