Some people seemed like they’d be naturals for the Supreme Court, but it never happened. No opening on the court materialized when they hit their prime, or the wrong president was in office when the chance presented itself.
Some people seemed like naturals, and it worked out. John G. Roberts Jr. and Elena Kagan, for instance, were mentioned as potential stars early in their careers. Roberts was 37 and Kagan 39 when presidents of their parties tried to put them on the U.S. Court of Appeals for the D.C. Circuit, a staging ground for future high-court justices.
And then there’s David Hackett Souter, who was awarded the prize that so many long for and then seemed ambivalent about it for the rest of his nearly two-decade tenure. He was different from the others. And now, in an even more exclusive club of retired justices, he has shown he’s different from them too.
Justice Sandra Day O’Connor crisscrosses the country hearing cases, accepting awards and crusading against the rising tide of campaign money being raised to elect judges. Justice John Paul Stevens has written a book about the 35 years he spent on the court, and he regularly grades the work of the justices.
Souter, on the other hand, has returned to his beloved New Hampshire, although not to the ramshackle farmhouse that was the fodder for so many feature stories. He was advised that the place would collapse under the weight of his massive book collection, so he settled into a perfectly normal-looking and lush neighborhood near Concord.
Or as “The honorable David H. Souter ’61, LL.B. ’66, LL.D. ’10, testified in his fiftieth-reunion class report,” reprinted recently in Harvard Magazine:
“I retired when the Supreme Court rose for the summer recess in 2009, and a couple of weeks later I drove north from Washington with no regrets about the prior 19 years or about the decision to try living a more normal life for whatever time might remain.”
A normal life that is a little different from most retirees. Like other retired justices, Souter is encouraged to continue to hear cases, and he appears to be a regular at the U.S. Court of Appeals for the 1st Circuit in Boston. He has served on dozens of cases and a LexisNexis search indicates he’s written 29 opinions.
But mostly he says he is reading. Souter complained just before he left the court that the work there kept him from pursuing his real intellectual interests. He said he underwent a “sort of annual intellectual lobotomy” when the court term started every fall.
But now he is free to fulfill what he calls “an interrupted education,” and the syllabus is daunting.
“The menu is mostly history: the classical period, the Carolingians, Britain up through the fourteenth century, American Puritanism as seen by historians after Perry Miller, the United States from Jefferson through Lincoln,” he wrote.
For others with interrupted educations, the Carolingians refers to the dynasty that ruled Western Europe beginning around A.D. 750.
Souter, who turns 72 this week, strikes a melancholy tone: “It may be that the seemingly intrinsic attraction that past time has for me is merely a desire for escapism, as I look out at the nation and world with little optimism.”
Souter famously said he had the best job in the worst city. He recalled a conversation with Justice Harry A. Blackmun, who told him that, like most justices, he “would probably have lived a happier life if I had never been appointed to the court,” but that it would be worth it.
Souter said his appointment by President George H.W. Bush gave him “the chance to do the best useful work that was in me.” No matter what the was verdict on the “quality of my workmanship . . . I was the luckiest guy in the world.”
Souter has commented on the workings of the court only once since retirement, in a Harvard commencement speech. He talked about the difficulty of interpreting the Constitution and how its values are, at times, in conflict with each other. He advocated addressing “constitutional uncertainties” by “relying on reason, by respecting all the words the framers wrote, by facing facts and by seeking to understand their meaning for living people.”
It provoked conservatives, who saw it as an attack on textualism, and led them once more to express their regret about Souter’s appointment.
But that day in 2010 at Harvard also provided Souter a fond memory, and one more chance for self-deprecation.
One of his fellow honorees was Meryl Streep.
“She happened to be somewhat ahead of me in the cohort of honor and processing into the New Yard between rows of regular degree candidates, and we were just about at the corner of Widener when one senior boy reluctantly took his eyes off the eminent actress and noticed me,” Souter wrote.
“He smiled with diminished voltage as he said, ‘You’re no Meryl Streep.’”
Researcher Lucy Shackelford contributed to this column.