Justice Souter's 'Safe Place'

Monday, May 25, 2009

On those rare occasions when someone in Washington voluntarily cedes power, the normal reaction from everyone else -- perhaps to avoid any potentially dangerous moments of self-reflection -- is to assume that the departee must be not quite well.

The case of Supreme Court Justice David Souter, who will return home to New Hampshire at the end of this term, has been no exception: "What, he won't miss the perks and fawning attention? Well, we always knew he was a bit odd." But last week, speaking to a small gathering at the Georgetown University Law Center, the not-yet-gone justice seemed disappointingly healthy. Surprisingly bleak, at one point, about the prospects of American democracy, though not despairing. Charming, modest and incisive. But definitely not odd.

Souter was speaking at a forum organized by former justice Sandra Day O'Connor, another voluntary retiree who since leaving the bench has energetically sponsored a series of useful activities aimed at promoting civic education and safeguarding the independence of the judiciary. Souter began by describing the small town hall in Weare, N.H., where, he said, he had graduated from eighth grade, proved a disappointment to the towns' mothers as they tried to teach the next generation to waltz and learned the essentials of American government.

Every year in March, Souter explained, "before the mud gets too bad, and before the field work begins," the townspeople would gather for their annual meeting -- "the most radical example of American democracy that there is." With the town's three selectmen at the front, every resident could attend, and any resident could speak.

Sitting sometimes at the back with friends, sometimes between his parents, Souter learned three lessons, he said. First, though people talk about "the government," power is divided; the selectmen could not speak for the police chief, and the police chief could not answer for the road agent. Second, though no one used the word "federalism," power is divided vertically as well; you could complain that the road agent hadn't plowed the Class 5 roads, he said, but the Class 2 roads were the domain of the state of New Hampshire.

And finally, the justice said, he learned the extreme importance of treating others "fairly and decently": "Everybody got the same chance to have his say." And so by the time they got to middle school, though they might never have heard of Montesquieu or even Madison, Souter and his classmates "had basically learned what they had to teach."

The justice went on to lament how many Americans today do not grow up understanding even the most basic truths about U.S. democracy -- that there are three branches of government, for example. This ignorance, he said, was "the most profoundly important fact" to emerge from O'Connor's first seminars, because if people do not understand the divisions and limitations of power, they certainly will not defend the judiciary's independence.

This led to a realization, he said, that "we had to start with the reeducation of a substantial part of the American population." Recalling Benjamin Franklin's oft-told admonition to a woman asking what the Founding Fathers had created -- "a republic, madam, if you can keep it" -- Souter said, somewhat gloomily, "It is being lost. It is lost if it is not understood."

O'Connor's response to this challenge has been to organize annual seminars, develop educational games for middle schoolers, and otherwise try to shape the national consciousness and debate.

Souter made clear that he will be no less committed but on a more intimate scale. He had just signed on, he said, to become a member of the New Hampshire Supreme Court Society committee aiming to develop civics education curricula for New Hampshire classrooms. In his telling, his progression from widest possible influence to a narrower sphere with perhaps a deeper connection seemed perfectly logical. It was easy to imagine him taking the next step, teaching civics in a classroom in Weare or thereabouts.

Souter recounted what he called "the most perfect statement" of the importance of an independent judiciary. It came from the late Judge Richard Arnold (often called one of the greatest never to reach the Supreme Court), who, Souter said, once told him, " 'There has to be a safe place.' That's all he said. 'There has to be a safe place.' That is why we have jobs to do -- hands-on, concrete jobs," Souter concluded. "Because there has to be a safe place."


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