friend and patron, gave Souter his first television set, he apparently never plugged it in. By the end of Souter’s first term, there was some sentiment around the Court that he was overwhelmed by his new job. Souter almost said as much in his customary first interview with the Court’s in-house publication, the Docket Sheet . “I really see myself less as working than as trying to keep from being inundated by the flow of things to be done,” he said. “Somebody used the phrase that coming here is like walking through a tidal wave, and it is.”
When the term ended in June 1991, Souter did not so much leave Washington as flee. He returned to the converted farmhouse in Weare, New Hampshire, that had been his grandparents’ home and where he had grown up. (Contrary to rumor, Souter did not live with his mother; she had moved elsewhere.) The swirl of events leading to his appointment had deprived him of the time to think about the magnitude of the task before him. In a letter declining an invitation from Blackmun to join him on his annual summer trip to Aspen, Souter wrote, “I have wanted as much as possible to be alone to come to terms in my own heart with what has been happening to me…. I have also felt the need to engage in some reading and thinking about matters that will be coming before the Court.” He wanted his summers, he wrote later, “wholly free for…self-education. I need some period of the year when I can make a close approach to solitude.”
When Souter returned the following fall for his second term—the year of Casey —it became clear both that he had been underestimated in Washington and that he brought a distinctive judicial philosophy to the bench. For most of the twentieth century, the political left and right had their clear judicial analogues on the Supreme Court. In rough terms, William Brennan and his allies used the Constitution as a vehicle for liberal change—to build a society with greater freedom and equality. On the other side, Rehnquist and Scalia generally put forth the view that courts should defer to political majorities and legislators and interpret the Constitution in line with the original intent of the framers. There was, however, a third tradition in American law, which was less familiar to the public because, unlike the others, it did not neatly reflect the division between the Democratic and Republican parties. But it was to this third tradition that David Souter belonged.
At his confirmation hearings in 1990, Souter made his affiliation plain. At the time, Souter was widely regarded as a “stealth” candidate because even though he had been attorney general of New Hampshire and a justice of the state supreme court, he had not taken public stands on the most controversial judicial issues of the day, like abortion. Prochoice advocacy groups assumed that as a justice Souter would simply do the bidding of the contemporary Republican Party. As the National Organization for Women said in a leaflet distributed during his hearings, STOP SOUTER OR WOMEN WILL DIE .
In those hearings, Souter did not so much take sides in the great legal debate of the day as puzzle the partisans on both sides. The hearings revealed that Souter had given deep thought to the Constitution and embraced a philosophy most closely associated with John Marshall Harlan II, who served on the Supreme Court from 1955 to 1971. Harlan, whose grandfather and namesake served on the Court from 1877 to 1911, was hardly a radical liberal; indeed, he dissented from many of the Warren Court’s most celebrated rulings. But neither was Harlan exactly a conservative, at least in modern terms. He believed that law existed to preserve the stability of society and that adherence to precedent best guaranteed a limited and predictable role for the judiciary. Above all, he believed in the rule of stare decisis. Like Harlan, Souter put his faith in the common law, the accumulated wisdom of judges and courts going back to
When the term ended in June 1991, Souter did not so much leave Washington as flee. He returned to the converted farmhouse in Weare, New Hampshire, that had been his grandparents’ home and where he had grown up. (Contrary to rumor, Souter did not live with his mother; she had moved elsewhere.) The swirl of events leading to his appointment had deprived him of the time to think about the magnitude of the task before him. In a letter declining an invitation from Blackmun to join him on his annual summer trip to Aspen, Souter wrote, “I have wanted as much as possible to be alone to come to terms in my own heart with what has been happening to me…. I have also felt the need to engage in some reading and thinking about matters that will be coming before the Court.” He wanted his summers, he wrote later, “wholly free for…self-education. I need some period of the year when I can make a close approach to solitude.”
When Souter returned the following fall for his second term—the year of Casey —it became clear both that he had been underestimated in Washington and that he brought a distinctive judicial philosophy to the bench. For most of the twentieth century, the political left and right had their clear judicial analogues on the Supreme Court. In rough terms, William Brennan and his allies used the Constitution as a vehicle for liberal change—to build a society with greater freedom and equality. On the other side, Rehnquist and Scalia generally put forth the view that courts should defer to political majorities and legislators and interpret the Constitution in line with the original intent of the framers. There was, however, a third tradition in American law, which was less familiar to the public because, unlike the others, it did not neatly reflect the division between the Democratic and Republican parties. But it was to this third tradition that David Souter belonged.
At his confirmation hearings in 1990, Souter made his affiliation plain. At the time, Souter was widely regarded as a “stealth” candidate because even though he had been attorney general of New Hampshire and a justice of the state supreme court, he had not taken public stands on the most controversial judicial issues of the day, like abortion. Prochoice advocacy groups assumed that as a justice Souter would simply do the bidding of the contemporary Republican Party. As the National Organization for Women said in a leaflet distributed during his hearings, STOP SOUTER OR WOMEN WILL DIE .
In those hearings, Souter did not so much take sides in the great legal debate of the day as puzzle the partisans on both sides. The hearings revealed that Souter had given deep thought to the Constitution and embraced a philosophy most closely associated with John Marshall Harlan II, who served on the Supreme Court from 1955 to 1971. Harlan, whose grandfather and namesake served on the Court from 1877 to 1911, was hardly a radical liberal; indeed, he dissented from many of the Warren Court’s most celebrated rulings. But neither was Harlan exactly a conservative, at least in modern terms. He believed that law existed to preserve the stability of society and that adherence to precedent best guaranteed a limited and predictable role for the judiciary. Above all, he believed in the rule of stare decisis. Like Harlan, Souter put his faith in the common law, the accumulated wisdom of judges and courts going back to
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