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Justice David Souter died on Thursday at his home in Concord, New Hampshire. He was 85. Whereas the phrase “No more Souters” would become a Republican battle cry for decades, a warning to never again confirm a justice who would drift to the left, today the words “No more Souters” stand as something of an elegy: The disappearance of public figures who move through the world with humility—attempting only to do the best they can to marry the law as drafted to the lives of the people who must live with it. On this week’s Amicus podcast, Dahlia Lithwick spoke to one of Souter’s former clerks, Mary-Rose Papandrea, the Samuel Ashe Distinguished Professor of Constitutional Law at the University of North Carolina School of Law. She clerked for Souter at the Supreme Court in the 1997 term. Highlights of their conversation, previewed below, have been edited for clarity.
Dahlia Lithwick: Justice Souter always seemed like he was preserved in amber; a man from some other century. He just seemed like he was in a Cary Grant movie from some other time. And yet he was so not zealous about this perfect past. He was really mindful of the ways in which he lives in this present moment right now, with exigent problems that need to be solved.
Mary-Rose Papandrea: Right. He easily could have gone the other way; committed to this old-fashioned way of life, with no television or internet, or email, or even a typewriter. But he was very much of the time and engaged with the present moment. I was just listening to a clip about his confirmation hearings where he talked about how every case impacts someone. At the end of the day, whatever they do will impact someone. He was keenly aware of the importance of his job, and he took it very seriously. But he was not trying to impose the old times, or go back in time and figure out what the Framers would have said about some new issue. That could have been his approach, but it surely was not.
I was just thinking about that colloquy he had at his confirmation. He was supposed to be a stalwart conservative, and John Sununu and George Bush and everybody thought he was going to be the anchor for the conservative revolution, and yet, at his confirmation hearing, he talked glowingly of Justice Brennan. And then there’s this funny colloquy with Sen. Chuck Grassley, who’s trying to trap him into articulating his views on “judicial activism,” and his response was kind of beautiful. He said that courts must accept their own responsibility for making a just society. Again, it’s both a grand notion of the role of courts but also acknowledges that courts have to live with what they have done.
I was just reading a little bit about the confirmation battles and Bush nominating Harriet Miers, and then that tanked and he nominated Samuel Alito. And Justice Alito is the antithesis of Souter in every possible way. To the extent that we see a very different court right now, it’s unfortunate because Souter represented—even if you didn’t like some of his decisions—an aspiration of what judges should do. How they approach their job and the seriousness with which they approach it, yet not serious about themselves in any way. I don’t know if you know this, but Justice Souter was adamant that there not be a memorial for him. So right now I personally hope the law clerks, the Souter family, can get together and honor him, because I need that to process my grief. But he did not want that spectacle. And he was very adamant. Unless the court overrides his wishes, and I don’t know how the internal workings of the court go, but you may have noticed on the announcement from the court, it didn’t say “details will be forthcoming.” He did not want that. It was never about him. He really wanted to do his work and he enjoyed the work, but he enjoyed the work in an intellectual way. He hated D.C., and there are a lot of things about the job he didn’t love, but I think he enjoyed the challenge of it.
I’d love to ask you just one last question about Souter’s approach to the Constitution, and to originalism. He famously gave this landmark speech at Harvard in 2010, where he talked about how he tried to be pragmatic, to have a functional jurist’s tool kit. And there’s this line toward the end of it, where he says, “If we cannot share every intellectual assumption that formed the minds of those who framed the charter, we can still address the constitutional uncertainties, the way they must have envisioned, by relying on reason, by respecting all the words the Framers wrote, by facing facts and by seeking to understand their meaning for living people.” It’s such an elegant formulation of how doing strict textualism, to the peril of people, or strict originalism, to the peril of people, is not the job; that there was no one unitary, coherent, simple approach to doing this work. That it was just this evolving organic effort to do your best. It was such a humble and careful craft that he tried to hone.
When I clerked for him, I never sensed any overriding judicial philosophy. I don’t think he was saying he was a textualist or originalist. He took every case as it came and really grappled with it, in all ways; looked at it from every angle. But he wasn’t dogmatic in any way, he was just trying to do his level best, you know, to do justice. I really think he just tried, and that’s what I hope we can see more of from the court. Outcomes matter, but the commitment to trying to not have it be about yourself, and really grappling with the difficult questions before the court, in an honest way, without preconceived outcomes and narrow judicial philosophies, matter as well.
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