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.
As one of David Souter's most conservative former clerks, I have always winced at the Republican slogan of "no more Souters" for the Supreme Court. Most conservatives feel - rightly, in many respects - that Justice Souter disappointed their hopes to move the court in a dramatically rightward direction. Conversely, liberals take the view - again, with some justification - that Justice Souter has been a bulwark of respect for liberal Warren and Burger Court precedents and a key vote for advancing the liberal agenda in areas like gay rights and the death penalty. But this conventional wisdom misses the important sense in which Justice Souter remained a methodological conservative throughout his career. That conservative approach to the judicial task ought to inform both assessments of Justice Souter's legacy and the debate over the nomination of his successor.
In the words of Justice David Souter, there has been an "ebb of the commerce power [which] rests on error." Since 1937, the Supreme Court charted a path of expansively interpreting Congress's power to regulate under the Commerce Clause. However, the Supreme Court began to curb this authority, striking down congressional acts under a less deferential reading of the clause, in 1995.
In Hulteen, Noreen Hulteen and three other women sued AT&T for reducing their pension benefits because they took time off work for pregnancy and childbirth. Two of the women were actually required by AT&T to take time off - a reflection of workplace practices at the time that presumed that all pregnant women were unfit to work or unwelcome because of their "condition." AT&T provides pension benefits based on a seniority system calculated based on years of employment minus uncredited personal leave time. Until the late 1970s, AT&T treated pregnancy and childbirth leave as uncredited personal time even though all other medical leave resulted in full service credit for the entire period of absence. Decades later, Ms. Hulteen and the other women learned that they were receiving a smaller pension benefit because of the uncredited pregnancy leave. The women argued that this calculation violated Title VII as amended by the