By Heather Gerken, J. Skelly Wright Professor of Law, Yale Law School & former Clerk to Justice David Souter (1995-96)
Adam Gopnik once observed that "Paris is a struggle between its pompous official culture and its matchless ... commonplace civilization." That description applies even more aptly to the Supreme Court. Officially, it is an institution cloaked in formality. It is also an institution that takes itself extremely seriously, with its strongest opinions pronounced when it thinks another institution - Congress in passing Commerce Clause legislation or the Religious Freedom Restoration Act, or the Florida Supreme Court in its rulings during the Bush v. Gore litigation - is treading on the court's privileges. Only the court's pompous official culture could explain why the majority in Bush v. Gore - in which the court shut down the Florida recount in an opinion now widely considered an embarrassment - could have claimed that their intervention was an "unsought responsibility." This is not an institution cursed with self-awareness.
Justice Souter, however, is at the core of the court's matchless commonplace civilization, something that may explain why he dissented in each of those cases. He is a judge's judge, a courtly lawyer who manages to be both a serious intellectual and a pragmatic decision-maker. He reads everything, is open to new ideas and new arguments, and yet is not swayed by the political winds that waft through the court.