The soon-to-be-retired David Hackett Souter is proof that you can always take the boy out of the country but you can't always take the country out of the boy.
The 105th Justice of the United States Supreme Court was in Washington for nearly two decades but was never of Washington; never warmed to its politics, its partisanship and its party circuit. He once said, in private of course, that he
So it is no great shock that this outwardly solemn man from the Granite State would decide, finally, to go home, perhaps to stay, in Weare, New Hampshire. Maybe it was the mugging he got in Washington in May 2004 while he was jogging at 9 p.m. on a Friday night. Maybe it is because he believes there is more to life than poring through legal briefs for nine months a year. During a rare public speech a few months ago, he complained that he underwent an "annual intellectual lobotomy" that could be cured in part by reading books away from the court. Or maybe he just wants to save his house from those people who hated his vote in Kelo, the eminent domain case just a few years ago.
Whatever the case, and we may never know, Souter leaves in his wake a legal legacy that is not unlike the grey slabs of smooth rock for which his home is known. He was not an ideologue and will not be known for any overarching legal philosophy. He was not an impolite dissenter; he rarely "raised his voice," as it were, in his written opinions (as some of his colleagues are wont to do). And the reticent man with the New England accent was never, ever a force in the court of public opinion. He was courtly, studious, typically pragmatic and, like millions of other people in the country, moved a little from right to left since being confirmed by the United States Senate, 90-9, in October 1990.
When Souter first came to the Court it was the Democrats, the liberals, who didn't trust him. Sen. Joe Biden, then Chairman of the Senate Judiciary Committee, voted for Souter but said he felt that "Judge Souter" had "satisfied his burden of proof with respect to some issues, straddled the line on others, failed on some and left us with a question mark on still other matters."
Massachusetts Senators Edward M. Kennedy and John F. Kerry voted against their New England neighbor. Senators Al Gore and Patrick Leahy, who now is Judiciary Chairman (and who now gets to confirm a Democratic appointee) voted in favor of the Justice.
But now that Souter is leaving the Court it is the Republicans, the conservatives, who feel, who have felt, for over a decade now, that they were betrayed by a Republican appointee who had been sold to them by President George H.W. Bush and New Hampshire Senator Warren Rudman (who sponsored "Judge Souter").
Souter was billed as a stern, conservative, tough-on-crime jurist who would deliver the goods for his fellow travelers for decades to come. In short, Justice Souter was supposed to be what Justice Clarence Thomas later was - and still is - a building block of the Court's movement, under then-Chief Justice William Rehnquist, toward a strongly conservative ideology.
Except that Justice Souter didn't read the script or, if he did, he didn't take it too seriously. Just a few years into his tenure, during the 1992 term, he helped save abortion rights in America even as he helped dismantle the arguably untenable standard set by Roe v. Wade. He and two other "centrists" on the Court - Justices Sandra Day O'Connor and Anthony M. Kennedy - came up with a plurality opinion in Casey v. Planned Parenthood that still stands today, both in theory and in practice. During that same term he also voted in favor of a ban on the recital of religious prayers at graduation ceremonies. The die was cast. Souter had bitten the hand that had fed him, and led him, to the High Court.
It wasn't that Justice Souter immediately and irrevocably became one of the Court's most liberal members. He never, ever played that role. In hundreds of decisions, some easy, others not so much, he sided with the Court's conservative majority - but not always. Last term, he was in the majority in 28 cases and in dissent on 13 occasions - hardly the stuff of legends. Indeed, he was no William O. Douglas, no William J. Brennan. Instead, like fellow Republican appointees Kennedy and O'Connor (who also have been pilloried and offended by the right), he straddled the Court's middle rung of ideology. Liberals loved that because Justice Souter gave them victories they had no right to expect when he was appointed. Conservatives hated it because they couldn't count on his vote.
About those votes: Justice Souter repeatedly voted in favor of campaign finance reform laws. He voted against the death penalty for juvenile offenders and for the mentally retarded, dramatically limiting the scope of the capital punishment in this country. He voted in favor of affirming the importance of "Miranda warnings," but also sided consistently (but again, not always) with law enforcement officials. When he sided with the Court's conservatives he rarely got credit. When he sided with the Court's liberals he could barely escape blame.
He dissented in Bush v. Gore. He wrote a separate dissent to say that Florida officials should have been given a chance to get the case back, with proper instructions from the Court as to which uniform voting standards to apply. "There is no justification for denying the State the opportunity to try to count all disputed ballots now," he wrote. He also dissented in the big 2nd Amendment case last term, siding with the Court's liberals who failed to convince Justice Kennedy that the District of Columbia's handgun ban was consistent with an individual's constitutional right to bear arms. And he was a vocal questioner even earlier this week, in what will be his last oral argument, suggesting that it was not yet time to pack away the Voting Rights Act.
History's morning-line rap on Justice Souter will be that he flip-flopped, that he was hired to be a conservative jurist and betrayed the very people who had placed him into power. I am sure the word "traitor" will be used again in describing the disappointment his backers have often felt throughout the years. But history's longer view, I believe, will be much kinder to Souter. And perhaps the best proof of this is how little he really did change, from the unknown federal judge he was in 1990 to the symbol he is today. In 1994, The New York Times did a cover story on Justice Souter, in part because of the spectacular influence he had wielded in the Casey decision.
Pulitzer-prize-winning journalist David Garrow spoke with some of Justice Souter's legal friends and colleagues in the wake of his dramatic "entry" into the annals of Court lore. One friend said about Souter's controversial Casey vote: "'What Casey boiled down to…' was 'how the judiciary can bind a society together.' David Souter…, has a vision of the Court as a 'moderating influence,' as 'a conciliator and legitimizer,' and that perspective represented 'the essence of David Souter. That's the David Souter I've heard many a night on porches.'"
Another friend told Garrow that he, too, was not surprised by Justice Souter's Casey vote "especially given 'David's respect for precedent…. David's a judicial conservative, not a political conservative," she told the interviewer 15 years ago. Labeled a traitor by conservatives, cheered but rarely treasured by liberals, and derided by Beltway insiders who thought him provincially nerdy, Justice Souter leaves Washington having helped gamely, year after year, to keep bound together a fractious society. He did it with pragmatism. He did it with hard work he clearly didn't relish. And he did it the sort of conservatism you just don't see much in courtrooms anymore. Here's hoping he finds the peace he's looking for - and perhaps a classroom to teach in when he's good and ready.
CBS News Supreme Court Producer Deidre Hester helped research this piece from Washington.
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