Souter’s Exit Opens Door for a More Influential Justice (Published 2009)

WASHINGTON — A couple of days ago, Fred R. Shapiro, the editor of The Oxford Dictionary of American Legal Quotations, asked constitutional law scholars for memorable quotations from Justice David H. Souter of the Supreme Court.

Mr. Shapiro got only four responses. One was about television coverage of the court (“The day you see a camera come into our courtroom, it’s going to roll over my dead body”). Another concerned the limited pleasures of reading legal briefs rather than serious books (“I find the workload of what I do sufficiently great that when the term of court starts I undergo a sort of annual intellectual lobotomy”).

Just two quotations came from the hundreds of opinions that Justice Souter, who is retiring in June, wrote in his 19 years on the court. Neither had much juice to it.

Writing zingers is, of course, not an important qualification for the job of Supreme Court justice. But the absence of memorable writing in Justice Souter’s work reflects a wariness of grand theories and the consensus among admirers and detractors alike that his influence is likely to be limited.

In replacing Justice Souter, President Obama will almost surely pick another liberal. But Mr. Obama may also consider Justice Souter as a kind of counterexample and choose a bigger and bolder figure, one who sets agendas, forges consensus and has a long-term vision about how to shape the law.

Legal scholars have praised Justice Souter’s care, candor and curiosity. But they have said that he is, by temperament and design, a low-impact justice devoted to deciding one case at a time, sifting through the facts and making incremental adjustments in legal doctrine to take account of them.

Other justices have had more impact, gaining influence through personal and intellectual persuasion.

Justice Souter filled the seat left vacant by Justice William J. Brennan, a liberal lion who was also a master tactician. The first rule of the Supreme Court, Justice Brennan would say, holding up his open hand, is to get to five — meaning persuading five of the nine justices. Justice Brennan also took the long view, planting seeds in bland footnotes in the hope they would take root in other cases years later.

Other justices have gained influence through intellectual combat and commitment to a judicial philosophy. Justice Antonin Scalia’s views about the importance of adhering to the text and original meaning of the Constitution and statutes, for instance, has come to dominate conservative judicial thinking.

“The replacement to Souter is not going to make an ideological majority for progressives,” said Abner J. Mikva, a former federal judge who taught with Mr. Obama at the University of Chicago. “The new justice has got to be someone who can persuade Kennedy and maybe even Alito.” Justice Anthony M. Kennedy is the court’s swing justice; Justice Samuel A. Alito Jr., a conservative, is its newest member.

Mr. Mikva said the other members of the court’s liberal wing — it includes Justices Stephen G. Breyer, Ruth Bader Ginsburg and John Paul Stevens — had not been up to the task. “Justice Breyer and Justice Ginsburg are good justices,” he said, “but they can’t lead. They can’t bring people with them.”

If that is so, it has not been for lack of trying. Justice Breyer, in particular, has been an active intellectual adversary of Justice Scalia on the bench and in his book, ”Active Liberty,” which said the goal of constitutional interpretation should be to enhance democratic participation.

But Justice Breyer is a liberal in a different mold from larger-than-life figures like Justice Brennan, Justice Thurgood Marshall or Chief Justice Earl Warren, who led the court through what many liberals consider a golden age.

It is not clear, though, who might step into that role now. The lower courts are filled with judges appointed by Republican presidents or by President Bill Clinton, who tended to appoint moderates. Should Mr. Obama want a big liberal voice, he might have to look to the legal academy. Kathleen M. Sullivan and Pamela S. Karlan, both professors at Stanford Law School, are often mentioned as possibilities.

Justice Souter arrived at the court in 1990 as a presumptive conservative put there by President George Bush. Just two years later, he helped write a joint opinion with Justices Kennedy and Sandra Day O’Connor in Planned Parenthood v. Casey reaffirming the core constitutional right to abortion identified in Roe v. Wade in 1973.

Justice Souter went on to disappoint his conservative patrons in countless other cases. Indeed, had he been the conservative that Republicans were hoping for, scores of important 5-to-4 decisions in the last two decades would have flipped the other way, and a solid conservative majority would have fundamentally reshaped the court’s docket as well.

“Roe would have been overruled,” said Geoffrey Stone, a law professor at the University of Chicago, “and many more of the Warren Court decisions would have been completely undermined.”

Similarly, it is a little glib to say that Mr. Obama will not reshape the basic dynamic of the court in appointing a liberal replacement for a liberal justice. If nothing else, Mr. Obama has the opportunity to replace Justice Souter, who is 69, with someone perhaps two decades younger, meaning that the justice’s seat is likely to remain a liberal one for a long time.

John O. McGinnis, a conservative law professor at Northwestern, said Mr. Obama should be looking for Justice Souter’s opposite in one respect. “Justice Souter shows negatively the importance of trying to find a very good writer,” Professor McGinnis said. “That is a hugely important criterion.”

But Mr. Shapiro, the editor of the book of legal quotations, said Justice Souter’s shortcomings were not unique.

“The contemporary Supreme Court is woefully lacking in eloquence,” Mr. Shapiro said. “Justice Souter, despite being an intelligent jurist with a wry sense of humor, is as eloquence-challenged as the others, and there are few memorable lines in his opinions.”

Even Justice Souter’s resignation letter was punctilious and reserved. In her own resignation letter in 2005, Justice O’Connor said she left with “with enormous respect for the integrity of the court and its role under our constitutional structure.”

Justice Souter invoked nothing that grand. Instead, he told Mr. Obama that was retiring “under the provision of 28 U.S.C. Section 371(b)(1), having attained the age and met the service requirements of subsection (c) of that section.” He appeared to have signed it in fountain pen, in script that would not have looked out of place on the Declaration of Independence.