I. The Souter Way

From the day he was nominated to the Supreme Court to the day he stepped down, Justice David H. Souter was described as “stealthy.” First, he was the “stealth candidate,” bringing to the Senate Judiciary Committee a sparse record on national legal issues. Then he stepped down from the Court as the “stealth Justice,” whose appointment conservatives deemed a mistake that must never be repeated.

However, any depiction of Justice Souter as secretive, unpredictable, or agenda-driven is an unfortunate mischaracterization, and Justice Souter’s life in the law has been misunderstood as a result. Throughout his public career, Justice Souter has openly articulated a jurisprudence based on a slow, measured evolution of legal doctrine. He modeled himself after Justice John Marshall Harlan II, a traditional judicial conservative whom he openly admired. Like Harlan, Souter is, and always was, a scholarly jurist, learned in legal history, steeped in the common law tradition, modest in wielding judicial power, and respectful of decisions reached by judges before him.

On the bench and off, Souter was never coy about his philosophy of judging. Indeed, the case most often identified with Souter’s tenure on the Court, Planned Parenthood of Southeastern Pennsylvania v. Casey, exemplifies his approach. While we may never know Souter’s thoughts on the merits of Roe v. Wade, by the time he was on the bench deciding Casey, Roe was a settled and workable precedent to be applied faithfully. That was the Souter way, an open and unwavering commitment to unhurried judicial modesty.

The remaining Parts of this Essay will illustrate the Souter way by comparing two “bookend” statements of his Supreme Court tenure: on one end, his testimony at his Senate confirmation hearings, and on the other, a little-noticed dissent filed eleven days before his retirement. The congruence of his statements is striking and is a forceful rebuttal to the common depiction of Souter as a “stealth Justice.”

II. An Unguarded Nominee

Senator Joseph Biden, chairing the Senate’s Judiciary Committee, opened then-Judge Souter’s confirmation hearings with an appeal: “For the next few days, Judge Souter, open for us a window into your mind, and give us a little bit of a glimpse into your heart.” Whether Biden anticipated it or not, Judge Souter, from the outset, intended to do nothing less. Based only on Souter’s opening statement, before the questioning had even begun, Biden was pleased: “[Y]ou have given us a little glimpse into your heart as well as how you view the responsibility you hope to undertake.” Four days later, as Souter’s testimony concluded, Biden spoke words almost unimaginable in more recent confirmation hearings: “I have been impressed . . . with your willingness . . . to, in my view, be . . . open and expansive in your response relative to your philosophy and to your methodology.” When queried on the Constitution and his philosophy of judging, the nominee was an open book.

To twenty-first-century ears, Souter’s performance at the confirmation hearings sounds haplessly candid. Souter began with a forthcoming opening statement that recognized that constitutional understandings should evolve “to make the promises of the Constitution a reality for our time.” In response to Senator Biden’s opening question acknowledging Souter’s admiration for the second Justice Harlan, Souter declared baldly, “I believe that the due process clause of the 14th Amendment does recognize and does protect an unenumerated right of privacy.” Surprised by what he was hearing, Biden thought better of his usual loquaciousness: “And that—please continue. I didn’t mean to interrupt. I like what you are saying.” Compared with nominees before and after him, Souter was hardly hiding the ball.

The hearings proceeded for days just as openly. Souter not only answered questions and discussed legal doctrine in detail, but went so far as to praise Justice Brennan and to recount a time when he counseled a Harvard undergraduate seeking an abortion. Perhaps unsurprisingly, Justice Harlan figured prominently in the exchanges. Indeed, Harlan’s name was invoked over fifty times during the hearings. Throughout, Souter earnestly and forthrightly sought to tether his jurisprudential compass to Harlan’s non-ideological embrace of stare decisis and slow, deliberate incrementalism.

New York Times reporter Linda Greenhouse astutely described Souter’s testimony as “a masterly exercise in self-definition from a nominee who began the process as a virtual unknown.” The Times’s recap of the hearings rated Souter’s performance as “polished” and free of “judicial absolutes.” Souter rejected originalism, supported the Warren Court’s criminal procedure revolution, and described a need for the Court to step in when Congress creates legal vacuums. As the Times reported, “Liberals were startled, not sure whether to credit what they were hearing.” To anyone listening carefully—as the abortion rights protestors rallying outside the Capitol were not—the Justice whom David Souter would become was communicated fully and eloquently by the nominee himself.

III. The Nominee as Justice

The Justice that David Souter did become is nowhere more evident than in one of his final opinions from the bench, a powerful dissent in District Attorney’s Office v. Osborne. In that opinion, Souter references his judicial hero, Justice Harlan, by name. He writes unusually personally. And he cites his most historic opinion, Planned Parenthood v. Casey, as an example of “widely shared understandings within the national society [changing] as interests claimed under the rubric of liberty . . . are recast in light of experience and accumulated knowledge.” There is little reason to doubt that Souter intended the opinion as his valedictory on legal change.

In Osborne, the Court decided that the Due Process Clause does not give convicted criminals a right to have their DNA tested, even when such tests could exonerate them. Souter’s dissenting opinion on substantive liberty is uncharacteristically lyrical and not always germane to the case itself—making it even clearer that the Justice was taking a final opportunity to speak to the Court, as well as to those pushing for judicial recognition of individual liberties. Sounding notes of Harlan, his message both recognizes the legitimacy of nontraditional rights to personal liberty and cautions against crusading for them prematurely.

Souter acknowledges that tradition is a “serious consideration” in deciding if a government action violates the guarantee of substantive due process, but he pointedly refuses to limit his inquiry to tradition alone. Conceptions of liberty evolve, he contends. But when a court grapples with recognizing an “individual right unsanctioned by tradition,” “the beginning of wisdom,” Souter writes, “is to go slow.” Consistent with his jurisprudential inclination toward slow, measured legal evolution, Souter considers it “essential to recognize how much time society needs in order to work through a given issue before it makes sense to ask whether a law or practice on the subject is beyond the pale of reasonable choice, and subject to being struck down as violating due process.” Drawing a parallel between a society and an individual reexamining their fundamental beliefs, Souter reflects that “[w]e can change our own inherited views just so fast” and explains that a society, like any individual, needs “time to work through it intellectually and emotionally.” However long a society needs to “take part in the dialectic of public and political back and forth about a new liberty claim,” a court should wait patiently, on the sidelines, for it to do so. Such patience is “not merely the requirement of judicial restraint as a general approach, but a doctrinal demand to be satisfied before an allegedly lagging legal regime can be held to lie beyond the discretion of reasonable political judgment.”

The Souter way is in full view in his Osborne dissent and neatly coincides with the jurisprudential vision he presented in his confirmation hearings. Souter’s opinion rebuts the conservatives on the Court in asserting that conceptions of liberty necessarily evolve. But it also instructs advocates that nations—and courts—need time to absorb new thinking about liberty. Defending the notion of evolving liberty while urging patience in pushing that evolution, the Justice echoed Harlan’s jurisprudence as clearly as when he testified in front of the Judiciary Committee as a nominee nineteen years before. A stealth jurist he was not.

Conclusion

Critics of the confirmation process forget the success of Souter’s confirmation hearings. He may not have entered the Hart Senate Office Building with wide-ranging written views of the Constitution and judging, but Souter laid out a full vision of how his jurisprudence would emerge for those with their ears open. With the partisan stakes of confirmation appearing to escalate with each nomination, we may have seen the last of nominees like David Souter. Whereas Souter was unknown at nomination and open at confirmation, current and future nominees will strive to be exactly the opposite: sufficiently ideologically committed to be noticed and selected, but utterly evasive and impenetrable during confirmation.

The myth of Souter as a “surprise” or “stealth” Justice is ill-fitting but lamentably persistent. We should instead reflect on David Souter as a consistent champion for evolving legal rights and deliberate judicial modesty throughout his life in the law.

Adam Chandler is a member of the Yale Law School Class of 2011. The author thanks Erwin Chemerinsky, Tom Goldstein, Linda Greenhouse, Gabrielle Holburt, and TheYale Law Journal Online editors.

Preferred citation: Adam D. Chandler, Slow and Steady: David Souter’s Life in the Law, 120 Yale L.J. Online 37(2010), http://yalelawjournal.org/forum/slow-and-steady-david-souters-life-in-the-law.