Thursday, May 7, 2009

The Legacy of Justice David H. Souter to the Judges of the World

The picture above you will certainly change when the Supreme Court of the United States reconvenes in October after summer recess. Justice David H. Souter is retiring from regular services as a Justice. Souter’s retirement gives President Barack Obama his first opportunity to nominate a Supreme Court Justice and the whole nomination-confirmation process will surely be interesting. However, now is time to look back at Justice Souter’s legacy as a Justice, a bequest that is not only to other judges and lawyers of the United States, but also to the judges of the world.

Born September 17, 1939, Souter became Justice of the U.S. Supreme Court in 1990. He attended Harvard Law School, graduating in 1966. Also disliked private practice and began his career in public service as Assistant Attorney General of New Hampshire in 1968. Souter also occupied the Attorney General of New Hampshire office and grew to be a Justice of the Superior Court of New Hampshire, the New Hampshire Supreme Court and the United States Court of Appeals for the First Circuit.

Former President George H.W. Bush nominated Souter as an Associate Justice of the Supreme Court in 1990, shortly after the United States Senate confirmed him by an astonishing vote of 90-9 after the Senate Judiciary Committee reported out the nomination by a vote of 14-3. However, his story is interesting in the sense that at the time of his appointment, his advisers and the conservatives assured former President George H.W. Bush that Souter would be a home run for conservatism.

Initially, from 1990 to 1993, Souter tended to be a conservative-leaning Justice, but then became one of the most reliable members of the court’s liberal wing, prompting the cry of “no more Souters” by Republican activists, dismayed about how George H.W. Bush’s choice had turned out.

Therefore, and as President Obama said, Souter has shown what it means to be a fair-minded and independent judge. He arrived to the Supreme Court of the United States with no particular ideology and no particular commitment to any political party. That was always clear, since, for example, Souter said during his confirmation hearing that he had no agenda on abortion and that the had not made a decision on how he would vote if the issue of Roe v. Wade was put before him.

Justice Souter is also a gentleman and a scholar who sees no need to show that fact off, and he will go down in history as so. Maybe he can be seen as a misfit or a loner, not quite in touch with modern life. The truth is that Justice Souter is respectful but direct while questioning lawyers who appear before the Court, and such activity displays his scrupulous preparation and his mastery of every case at hand. A Justice has to always make tough decisions and possibly gain some enemies for doing so, but there is nothing more important than a respectful judge, one who complies with the law in order to have the moral authority to instruct others to comply with it.

As any other man in the world, Justice Souter can also be examined by his work. And the main job of a Justice is to write opinions. Nevertheless, there isn’t any landmark case with Justice Souter’s majority opinion signature. What we have from his time in Court are 156 majority opinions and 123 dissenting opinions. Worth mentioning are the following cases:

The most remembered case will surely be Planned Parenthood v. Casey where he developed a joint opinion with Justice Kennedy and former Justice O’Connor that practically upheld Roe v. Wade, a case concerning abortion rights. Souter wrote that Roe v. Wade should not be overturned because it would be “a surrender to political pressure”. Other opinion that will always take us back to Justice Souter is his powerful dissent in Bush v. Gore, the 5-to-4 decision that ended the disputed Florida recount in the 2000 presidential election and effectively declared George W. Bush the winner. Souter demanded that the presidential election recount continued in Florida, a position that was not taken by the majority of the Court.

Legal expert Jeffrey Toobin wrote recently that his favorite Souter opinion came in a largely forgotten case named Bowles v. Russell. In that case, Keith Bowles was sentenced to fifteen years to life for a murder in Ohio. He wanted to file an appeal in federal court. The judge told him he had until February 27, 2004, to submit his papers. Bowles’s lawyer turned them in on February 26th. But the judge had made a mistake. The law said that the deadline should have been February 24th.
Should Bowles be allowed to proceed with his appeal, because he had relied on the judge, or should he be barred under a strict reading of the law?
By a vote of five to four, in an opinion by Justice Clarence Thomas, the Court said: The law’s the law. Bowles missed the deadline, which he might consider as he potentially spends the rest of his life in prison.

Souter wrote the dissent for his three liberal colleagues, and for Toobin, the opinion is a lesson in graceful outrage. “It is intolerable for the judicial system to treat people this way, and there is not even a technical justification for condoning this bait and switch,” Souter wrote, “I respectfully dissent.”

Some might think dissents are not important. However, dissents can be a great opportunity to create philosophical ground upon which citizens can advance alternative interpretations of the constitution of their own. For example, let’s take a look to the dissent of Justice Ruth Bader Ginsburg (actually the only woman in the Court) in the pay equity case of Lilly Ledbetter.

Ginsburg, joined by Souter, in dissenting from the majority opinion, which threw out Ms. Ledbetter’s suit because she did not file it as soon as she received her first short-changed pay check. Yet Ms. Ledbetter, an Alabama grandmother, did not learn of the pay disparity she suffered until someone put an anonymous note in her box. Moreover, as Justice Ginsburg explained, women in all-male work force are often scared to make waves.

Justice Ginsburg forceful and passionate dissent helped frame the issue. Her plain language spurred activists, politicians and even the Obama campaign to push Congress to change the law. As a result of this mobilization, the first major piece of legislation signed by President Obama, the Lilly Ledbetter Equal Pay Act, overruled the Court majority’s restricted decision.

It really doesn’t matter that Justice Souter didn’t get to write the majority opinion of any landmark case. What really matters is that Souter was always there to write clear and respectful dissents, which might actually change the legal panorama someday. This proves that Souter consistently defied labels and rejected absolutes, focusing instead in one task: reaching a just result in the case that was before him.

President Obama also said that Justice Souter approached judging as he approaches life, with a feverish work ethic and a good sense of humor, with integrity, equanimity and compassion, the hallmark of not just being a good judge but of being a good person. His retirement has prompted other Justices to praise his job.

Justice Stevens said that he is confident that Souter professional work will be extremely well judged by future historians, while Justice Kennedy preferred a most personal side, saying that Souter is one of the most adept and amusing storytellers he has ever encountered. The Nation, he said, should be grateful always for his integrity and absolute probity, and for his lasting contributions to our law and to the dignity of the United States Supreme Court.

Justice Ginsburg stated that among jurist with whom she have served, Souter is the very best. For her, his level of preparation for the cases is astonishing and he works very hard at getting it right.

What will Justice Souter be remembered for? Certainly, it will not be for an opinion. Instead, Justice Souter will be remembered for being the perfect judge. First, he was an independent Justice, giving no promises to any political party and deciding the case in accordance with the law, not with his beliefs. Second, he was a gentleman, a very private man that took no interests in politics and publicity, because he understood brilliantly the art of being a judge. Third, because of his dissents, always leaving important constitutional doctrine to the people, doctrines that will be revisited and probably adopted in the future. Finally, because he was an excellent jurist who always tried to get the cases right, and above all he was a good friend. The United States Supreme Court will surely miss him.

Souter is an example to all the judges in the world. Every judge must be independent and fair-minded. Every judge must go to the bench with no particular ideology or political commitment but with the vow of applying the law. Every judge must show good manners and while trying to reach a just result, he must be a good person. Judges are the keepers of the law, and with law comes peace, so believe it or not, judges are responsible for delivering peace to every nation and to help counterbalance the abuses of this extremely political driven world.

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