Mr. Smith Leaves Washington

By Dana Milbank
Tuesday, June 30, 2009

As the justices read out their opinions yesterday on the final day of the Supreme Court session, the robed ones went about their usual routines: Stephen Breyer and Samuel Alito sipped from their coffee cups, John Roberts caught up on his reading, Antonin Scalia rubbed his eyes and Clarence Thomas rocked in his chair and massaged his forehead.

But one justice sat up in his chair, straight and attentive. David Souter, his silver hair parted neatly above his high forehead, gazed up at the 44-foot ceilings. He studied the classical frieze on the west wall of Justice staring down the forces of evil. He surveyed the rows of leather chairs and mahogany benches. When the marshal intoned the traditional lines of "God save the United States and this honorable court," Souter closed his eyes as if in prayer.

It was the last time Souter would hear those words and see those images from his place on the bench. The New Englander had decided, as the chief justice put it, "to trade white marble for White Mountains" after two decades on the high court. "I will not sit with you at our bench again after the court rises for the summer this time," Souter told his colleagues, "but neither will I retire from our friendship, which has held us together despite the pull of the most passionate dissent."

That one, gentle reference to "passionate dissent" was as close as Souter got to acknowledging the deep split in the court during his tenure. The rift had been on display yesterday for the half-hour preceding Souter's farewell remarks. In one racial bias case, the conservatives won a 5 to 4 decision, leading a piqued Ruth Bader Ginsburg to read aloud from her dissent. In the second case, involving consumers' rights, the liberal bloc won a 5 to 4 decision. In a third case, on campaign finance, things were so muddled that Roberts announced the court would hear more arguments in September.

Because of Souter's quiet ways (he uttered all of 200 words in his farewell yesterday), it's easy to forget how different the country would be today if this unmarried recluse from the North hadn't decamped long ago to join the court's liberal wing. Had he remained the conservative that President George H.W. Bush thought he was getting when he nominated Souter in 1990, there's every possibility that abortion would be illegal in the United States today, that the Ten Commandments would be displayed throughout schools and courthouses, and that the law of the land on any number of issues -- guns, terrorism, race -- would be different.

Before yesterday's session began, William Suter, the clerk of the Supreme Court, stood in the chamber in his tails and vest, giving a talk to a group of visitors. "Politics is over here," Suter said, holding up one fist. "Law is over here," he said, holding his other fist apart. Would that it were so. Everybody who has heard of Bush v. Gore knows that the justices have at times been as political as their counterparts across the street in the Capitol.

But Souter refused to play his assigned partisan role in the court's battles -- and he defied the conservatives one final time yesterday. As the five other Reagan and Bush appointees formed a majority to say that New Haven, Conn., discriminated against white firefighters, Souter joined the two Clinton appointees and John Paul Stevens in a dissent accusing the majority of a "confounding" opinion that "misconceives one of our nation's principal civil rights laws."

Within moments of the announcement, the majority's opinion was being used by the Republican National Committee in a news release blasting President Obama's nominee to replace Souter, Sonia Sotomayor, whose appellate court ruling the justices overturned. But in the courtroom, at least, the politics were tempered by collegiality. Former Clinton solicitor general Walter Dellinger, in a white linen suit and black athletic shoes, hobnobbed with Ted Olson, solicitor general under President George W. Bush.

Souter, emerging from the red curtain behind the justices' thrones, was the first to take his place on the right side of the raised platform. He stroked his chin thoughtfully as Anthony Kennedy announced his majority view in the civil rights case. He glanced around the room with a melancholy look as Ginsburg read the dissent, which Souter joined, likening the majority to "the chess player who tries to win by sweeping the opponent's pieces off the table."

But enough dissent. It was soon time for Roberts to announce "with sadness that this is the last session" for Souter. The other justices sat up in their chairs. Souter stared down at the desk in front of him. Reading from a letter to Souter from the justices, Roberts quoted Robert Frost as he wished his colleague well in his "return to your land 'of easy wind and downy flake.' " Only when Roberts got to the end, about "the privilege of your sturdy friendship," did Souter finally look at the chief justice.

"I have written the following reply," Souter said dryly, as if preparing to read a dissent. A ripple of laughter went through the courtroom. "You quoted the poet, and I will, too, in words that set out the ideal of the life engaged, 'where love and need are one,' " Souter read. "That phrase accounts for the finest moments of my life on this court, as we have agreed or contended with each other over those things that matter to decent people in a civil society."

In truth, they contended more than they agreed. But, in refusing a partisan role, Souter was more than decent.

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