If you pay much attention to the news, you’ve probably heard that Supreme Court Justice David Souter is retiring in June. The prevailing wisdom is that it really doesn’t mean much in the grand scheme of things. Barack Obama will likely nominate a liberal to replace the moderate to liberal retiring justice, so nothing about the court’s performance will change.
For a variety of reasons, this isn’t quite the case. For one thing, the average age of Supreme Court nominees has steadily declined over the years as presidents acknowledge the potential of packing the court with like-minded jurists and extending their legacy well beyond their four or eight years in office. It is unusual for a president to have a chance this early in his term to shape the nation’s highest court. George W. Bush had to wait until his second term in office to appoint anybody. Moreover, Souter is 69 years old, right at the average age of the Supreme Court. To get the opportunity to replace him, along with the guaranteed replacement of older justices like John Paul Stevens, 89, Ruth Bader Ginsburg, 76, and perhaps Anthony Kennedy,72, means Obama has a chance to fundamentally reverse years of conservative court packing. Since 1968, only two Supreme Court appointees have been Democrats, but that will change dramatically in the next few years.
For another thing, political scientists have begun to note that Supreme Court justices are not ideologically static once they get on the court: In fact, they tend to drift quite a bit once they are on the court for a few years. Souter is himself the best living example of this difficulty in presidential nominations. Souter was appointed by George H.W. Bush and was a lifelong Republican. For the first year or so, Souter was predictably conservative, but then in 1992, Souter began his long transition into the liberal wing of the court.
President Obama has made it clear he would like to appoint an empathetic pragmatist to the court, someone who eschews grand philosophical stances and instead focuses on the impact of laws on real people. The names floating around as possible replacements are all reasonably related to this goal, and many of the potential nominees, like Michigan Gov. Jennifer Granholm, are not career judges. But Obama should be aware there is great peril to be had in nominating pragmatists or “stealth nominees.”
Liberals like myself have been waiting for this moment for a long time. We’ve had it with the Scalias and Thomases of the world having the final say on things. And though Souter has become a liberal over time, he is a far cry from the liberal lions of the mid-20th century.
It is worth clarifying that a good deal of Souter’s drift was actually just the court moving to the right around him. Provided that things go according to plan (and this seems likely, given the Democratic control of the Senate), Obama will likely get someone more liberal than Souter.
But why Souter really matters has nothing to do with any of this. In fact, reflection on his career has convinced me Obama should not try to appoint a liberal ideologue. The truth is we’ll never get another Souter if we go down that path, and that would be a shame. Souter is my favorite justice on the current court, and if you had watched his career, he’d probably be your favorite too. Souter’s personal life was simple: He ate yogurt and an entire apple (core included) every day for lunch; he lived in a remote farmhouse passed through his family for generations; he hated Washington, D.C., and would scurry off to New Hampshire to go rock climbing the minute the court’s session ended every June, and he didn’t use a cell phone or voicemail. Aside from this Thoreauvian life of simplicity and independence, Souter’s professional conviction was astounding. Just two years after his appointment, Souter was expected to do the bidding of the Republican Party and overturn Roe v. Wade, but he instead went against his own moral preferences to defend the institutional legitimacy of the court and the continuity of law. Despite his deep religious faith, he reiterated the importance of the separation of church and state in Lee v. Weisman. It was reported he was so perturbed by the Republicans’ bald-faced abuse of power in the famous Bush v. Gore case that he said he simply could not serve on the court if it were to be a sham. It took a monumental effort to convince him to stay for an additional nine years, but he did so out of a sense of duty.
Souter was a symbol of the best of our aspirations for the rule of law. He was not a cartoonish formalist. He did understand law must serve our purposes if it is to be good law, but he did it with a temperance and dignity that will not likely emerge again on the Supreme Court. One can’t help but feel, amid all the politically infused speculation, that Souter’s retirement is the passing of an honorable way of thinking about the law. At the very least, we liberals should think twice before we speed that process along by demanding political reconciliation on the court.
Dan Walters ([email protected]) is a graduate student in political science.
