Noah Feldman: David Souter set an example for the Supreme Court

David Souter the former U S Supreme Court justice who died at on Thursday was sometimes mistakenly thought to have turned into a liberal after being nominated by President George H W Bush on the expectation that he would be an ideological conservative History will show the opposite Souter was among the greater part consistent principled justices ever to have sat on the Supreme Court in its -year history His jurisprudence was steeped in the value of precedent and the gradual cautious evolution of the law in the direction of liberty and equality Strength modesty restraint A New Englander to the core he revealed what he meant and meant what he revealed At a moment of unprecedented threat to the rule of law Souter s career stands as a model of judicial strength and resilience tempered by modesty and restraint If the court follows his example the Republic will survive even the serious dangers it is facing now At his confirmation hearings relics of another time Souter spoke openly of his admiration for Justice John Marshall Harlan II known for his explanation that constitutional liberty is derived from a tradition that is a living thing and cannot be limited by the specific guarantees of the text The key to Souter s judicial philosophy was the idea derived from the common-law method of precedent and also linked with the conservatism of Edmund Burke that the rule of law works best to protect us when it proceeds by slow efforts attuned to social change not by leaps forward or backward that produce backlash and end up rejected Move slowly don t break things The the majority famous expression of Souter s precedent-based view came with characteristic modesty in a joint opinion that he co-wrote with Justices Sandra Day O Connor and Anthony Kennedy in the matter of Planned Parenthood v Casey The Casey decision upheld the abortion right laid down in Roe v Wade on grounds of stare decisis respect for precedent even as it distanced itself from Roe s logic The justices explained that overturning Roe would seriously weaken the court s ceiling to function as the Supreme Court of a Nation dedicated to the rule of law In a sentence that exemplifies Souter s complex-yet-subtle style the justices wrote that the court s power lies in its legitimacy a product of substance and perception that shows itself in the People s acceptance of the judiciary as fit to determine what the Nation s law means and to declare what it demands Broken down into its component parts what this all-important passage means is that the Supreme Court can only protect the rule of law if it is perceived as legitimate by the people That is because the people are the ultimate authors of the Constitution and are ultimately responsible for making sure it is followed Judicial legitimacy for Souter comes from the judicial method which is to move slowly and not break things Developing of precedent The conservative majority of the current Supreme Court rejected this logic when it overturned Roe and with it Casey That emerging of precedent weakened the court s legitimacy as Souter predicted it would Now that same Supreme Court must rely on its weaker legitimacy to stand up to save the rule of law Souter would have an answer The court can and must return to precedent because that body of judicial opinions going back in time is the only basis on which the court can rely when saying that its interpretation of the Constitution is best The court cannot and must not insist that its interpretation is correct because it is certainly or objectively true Rather the weight and legitimacy of the court s interpretation of the Constitution comes from its acknowledgment of its own uncertainty That is a complicated thought but it is the essence of Souter s profound insight into constitutional judgment In a commencement address he gave at Harvard University after retiring from the court Souter rejected the false certainty of originalism which he ascribed to the false aspiration to certainty Where he differed from the originalists like the late Justice Antonin Scalia he declared was in Souter s belief that in an indeterminate world I cannot control it is achievable to live fully in the trust that a way will be ascertained leading through the uncertain future The justices must interpret constitutional uncertainties by relying on reason that respects the words the framers wrote by facing facts and by seeking to understand their meaning for the living He concluded That is how a judge lives in a state of trust The trust in other words comes not from inherent certainty but from following the path the living Constitution has followed a path of evolving precedent Continuity with American ideals Personally Souter s self-conception paralleled his philosophy of living tradition It was sometimes stated that Souter was a man of the th century That was almost but not precisely correct He abjured device and lived much of his adult life in a centuries-old family farmhouse in Weare New Hampshire population He worked seven days a week allowing himself to arrive late in chambers on Sunday morning only because he had attended Episcopal Church He never wore a coat in Washington maintaining that it was never cold enough to warrant it even while standing for hours in the snow awaiting the casket of Justice Harry Blackmun He ate nothing but an apple and yogurt for lunch ran miles every day in all weather and loved books as much or perhaps more than he loved people Yet in fact in his mind and in his soul which were in his occurrence almost the same thing Souter was to a remarkable degree a man of the late th century the time when the ideals and assumptions of the founders America ran headlong into modern democracy modern industry and modern capitalism His favorite authors whose literary style influenced his distinctive judicial opinions were the novelist Henry James - and the historian-statesman Henry Adams - He wrote his senior essay as a philosophy undergraduate on the thought of Justice Oliver Wendell Holmes Jr - he was awarded his degree summa cum laude for it before going off to Oxford as a Rhodes Scholar Like those great American thinkers Souter devoted himself to trying to figure out how to maintain continuity with the ideals of the American past while acknowledging vast discontinuities in contemporary reality If in the distant future his own diaries become general I expect those who have the privilege of reading them will marvel at the similarity of the intellectual and spiritual challenges faced by James Adams Holmes and Souter born a hundred years later than the foundational figures with whom he identified Clerking for Souter was the privilege of a lifetime Clerking for Souter was the privilege of a lifetime His kindness his charm and his elegance of character were all palpable beneath the formidable facade of New England reserve Sitting in his office exchanging ideas and stories with him as the light faltered I knew as I have rarely known anything before or since that I was in a chain of transmission that went back to the Puritan fathers who were his literal ancestors and my metaphorical ones He was the best and wisest man I have ever known Noah Feldman is a Bloomberg Opinion columnist A professor of law at Harvard University he is author the greater part in recent months of To Be a Jew Nowadays A New Guide to God Israel and the Jewish People Related Articles Shuli Ren Trump and Xi tone down a senseless pact war Mihir Sharma How the US gave India and Pakistan an excuse to stand down Matthew Yglesias If your commute is a nightmare blame Congress Timothy Shriver If you want to solve problems lose the contempt Veronique de Rugy Trump s budget would lock in big-government spending and deficits