More Souters

David Souter's tenure on the Court reminds me of what we say about good umpires: you hardly knew they were there. They quietly call a good game without calling attention to themselves. Linda Greenhouse has an appreciation.

“History provides an antidote to cynicism about the past,” he said at a meeting in March of the American Academy of Arts and Sciences, of which he is a fellow. His participation in a session on the importance of studying the humanities was a rare out-of-court public appearance and therefore attracted news coverage. The take-away quotation from the session was his remark that as each new Supreme Court term began, he prepared himself to undergo “sort of an annual intellectual lobotomy” — a remark that, out of context, seemed baffling and oddly alienated. What he meant was clear from the prepared portion of his talk: that the demands of the term tore him away from the serious reading he sees as essential to the job.

Constitutional change, he explained, “comes about because judges evaluate significant facts differently,” or they “discover some relevance to a constitutional rule where earlier judges saw none.” He said that “historians can come to the rescue” by explaining how and why this happens. His ostensible text was the Supreme Court’s journey from the “separate but equal” holding of Plessy v. Ferguson in 1896 to the desegregation ruling in Brown v. Board of Education 58 years later.

But there was an unspoken, and more pointed, subtext: his continued dismay at the court’s 5-to-4 ruling two years ago that invalidated the effort by the public schools of Louisville, Ky., to prevent resegregation by use of a modestly race-conscious student assignment plan. The dissenters — and Justice Souter was one — viewed the opinion by Chief Justice John G. Roberts Jr. that this once-segregated city lacked any “compelling interest” in preserving its progress toward integration as profoundly ahistorical and as a troubling signal for the court’s future approach to government actions that touched on race.

Their fears seemed well founded this past week, during the court’s final argument session of the term. The question was whether a central portion of the Voting Rights Act is constitutional, and as the argument progressed, it appeared quite likely that the answer from Chief Justice Roberts and his conservative allies might well be “no.” Nathaniel Persily, an election law expert at Columbia Law School who was in the courtroom audience, wrote later on an election law listserv that Justice Souter looked “visibly angry” during the argument. Professor Persily, reflecting the growing expectation that Justice Souter might soon announce his retirement, added: “I got the sense that he was disappointed that he might be leaving the Court with a dissent in this case as being his parting gesture.”

It must be somewhat gratifying for him knowing that he waited until the party whose mantra has long been "No more Souters" was banished from power before he announced his retirement. Well played, I'd say.