Justice Souter's Dream

A day after announcing his retirement, Justice David Souter hinted at the approach to jurisprudence he might want to see in his replacement. Souter gamely showed up to an Oxford University alumni luncheon at the Willard Hotel on a Saturday, along with Justice Stephen Breyer. Harvard Law professor (and former Souter clerk) Noah Feldman moderated the talk.

Here is Souter advocating what can be described as a philosophy of many philosophies. Feldman has just asked whether judges should have philosophies (Souter says it can't be helped) and whether the public should know what they are:

"We can't have a single philosophy. The most dangerous thing in the world is to have a judicial philosophy. And the reason is there's no one philosophical system, at least in my experience, for the interpretation of statutes--and God knows, for the American Constitution--that is going to be able to work regardless of all circumstances."

Souter, a Bush 41 appointee whose middle-to-left leaning jurisprudence ultimately disappointed many conservatives, went on to chide those with absolutist views:

"Take the recently popular view (in my judgment a legitimate view subject to limitations) that the Constitution must be read with some reference to original meaning. As long as you don't engage in crude psychological fallacies about what you're getting at by original meaning, I think there is enormous value in that philosophy. But one has to be willing to admit there are circumstances, there are questions, for which there are simply no materials that would shed any light on original understanding. And if you committed your entire sense of legitimacy to the notion that the answer has got to come from this original understanding ... you will find some way to put (that philosophy) into practice, whether you have legitimate premises for it or not."

Should text, original meaning and judicial precedent fail to yield a clear answer to a case, Souter frequently turns to good old common sense:

"If all else fails, as it frequently does, ask a question about what might be called a shared sense of reasonableness. Perhaps that's the ultimate philosophy. We have a political and cultural context--what do the American people think is reasonable, not me necessarily, but what is the shared sense of reasonableness?"

After the talk, Souter told me he "probably" would have retired had John McCain been elected.

"Probably so. ... I'm going to be seventy soon. I've watched other justices wait until their eighties to retire, and by that time they have nothing left to retire to. I didn't want that to be me."

It's well known that Souter prefers life in rural New Hampshire and has an abiding dislike for D.C. After telling another questioner that there's no good hiking south of Massachusetts, he described a dream he's had every day since deciding to retire: He is standing atop New Hampshire's highest peak, above the treeline, looking down a path that winds away into the distance.