Broadcast on WAMC Northeast Report, May 12, 2009
David Souter has announced his retirement from the U.S. Supreme Court where he served for nearly two decades. Souter has been one of only two true conservatives on the Roberts Court. He did not join the Court with an ambition to change things. He has never been a radical, insisting that he had the one true answer and prior Courts were all off the mark. As a true conservative he has been modest about his ability to engineer the future. What time had tested should be conserved.
In that sense he is a conservative in the tradition of Republicans in New England and Rockefeller Republicans in New York who remembered that their party had written the 13th, 14th and 15th Amendments and welcomed the opportunity, at long last, to enforce them. And Souter is a conservative in the time honored tradition of Edmund Burke in England who supported the American Revolution because we were protecting what had been ours, but who opposed the French Revolution because it showed no respect for tradition, and led to a reign of terror and the Napoleonic wars.
Souter would have been at home on the Burger Court. Recognizing the challenge to create a colorblind society without compromising the ideal itself, the Burger Court balanced conflicting goals and charted a middle way. By the time Souter joined it, the Rehnquist Court had substituted a principle of blindness for the dream of a colorblind society. Looking at a perfectly segregated workforce the Rehnquist Court said the company didn’t really mean it so its segregation didn’t count. Souter never made that mistake.
Nor did Souter greet with equanimity the possibility of executing an innocent man as some of his colleagues did and still do. Conservatives believe in fundamental values of truth, and innocence. Souter left heartless efficiency to the radicals masquerading as conservatives.
When the Rehnquist and Roberts Courts tried to scuttle the environmental movement by rewriting doctrine, Souter refused to go along, arguing that the law did not justify it and it wasn’t Souter’s job to impose a vision of the environment on the country. We had state and federal legislatures and agencies entrusted with that task.
And when the Rehnquist Court changed the long settled meaning of statutes to the disadvantage of workers and consumers, Souter balked at a judicial economic policy.
None of that involved Souter creating new law.
The so-called conservatives on the Rehnquist and Roberts Courts have had an equality gap – talking about equality but refusing to rule in favor of the people who need it. And they have had a right to life gap – protecting lives in utero but refusing to protect innocent lives from execution. And they have had a democracy gap – insisting that their radical forms of misinterpretation are driven by respect for the people even while refusing to count the votes or recognize any democratic rights in any branch of election law with the single exception of protecting white voters claiming they were not over-represented enough. To Souter’s undying credit, he resisted all that hypocrisy and fought for enduring American values.
It’s not clear whether he will eventually recede into the fog of history. We won’t find ringing phrases over his name. We won’t find sharp breaks in the law with his signature. Historians and scholars looking for the big events may forget him. But Souter did what judges are supposed to do, indeed what radical conservatives have claimed that judges should do – restrain themselves, preserve the law, defer to the legislature – even while those same radicals were devising ways to do just the opposite. And for that, for the patience to do the basic if unglamorous job of judging honestly and modestly, we are all in Souter’s debt. He has been a true conservative on the Court, and a real patriot.