By Ellen D. Katz, Professor of Law, University of Michigan Law School & former Clerk to Justice David Souter (1996-97)
In the weeks since Justice David H. Souter announced his plans to retire, several commentators have observed that Souter opinions rarely include a "zinger" or otherwise quotable passage that might entertain the reader. This observation is not meant as a compliment. It has typically been followed by an expression of hope that Justice Souter's successor on the court will be more inclined than he was to couch ideas in catchy phrases and pithy expressions. For these critics, Judge Sotomayor must disappoint, for she writes opinions that are said to "avoid quotable language."
Let them be disappointed. The Supreme Court of the United States is not an advertising agency and the job of a Supreme Court Justice is not to develop memorable slogans. True, various Justices have produced a number of enduring lines over the years, sentences or simple phrases that have succinctly captured some of our most fundamental beliefs. Recall Justice Jackson who wrote of "fixed stars" and prescribed orthodoxy to great effect, or Justice Holmes, who coined the phrase "clear and present danger" and sagely explained to us the relevance of Herbert Spencer's Social Statics.
It is worth remembering, however, that often-quoted Justice Holmes also gave us the bone-chilling "three generations of imbeciles are enough" as well as a jarring assertion of judicial incapacity to address black disenfranchisement in Alabama. Holmes's claim that "the great mass of the white population intends to keep the blacks from voting" may have been empirically false at the time, but predicted the future with dead-on accuracy. By saying it, Holmes made it true.
Justice Souter's opinions, it is said, contain relatively few quotable phrases. That may well be correct, although I suspect there are more good lines that the critics have allowed. (His description, for instance, of the obligation of all voters "to pull, haul, and trade" captures the essence of political participation better than any other I have encountered.) And while it is safe to say that no one would read a Souter opinion for light entertainment, here too I recommend taking a closer look. Some of the Justice's more obscure expressions make me smile every time.
Far more important, however, and indeed what is well worth emulating is the method of analysis Justice Souter has brought to each opinion he has authored. This method was in full view a dozen years ago when I had the privilege of working for him, as it has been from his earliest opinions to the most recent.
Justice Souter writes in a singular, inimitable voice, one that emerges distinctly and consistently without regard to which clerks had the good fortune to work with him during a given term. His is the voice of a common law judge-as the Justice is frequently and appropriately described- methodically reasoning from authority to outcome, from the particular to the general, and from one case to the next.
Justice Souter's opinions reflect a tireless focus on the case at hand, and an approach to judging that is informed relentlessly by a deep respect for the law and the institutional role of the court. His opinions show how text, history, and precedent all matter critically, but they also demonstrate that language is crucial and must be used correctly and precisely.
Read a Justice Souter opinion looking for a sound bite and you may well come up short. But what you are sure to find instead is text thoughtfully crafted with knowledge, intelligence, and good sense, text that reflects the judicial temperament of its author. Producing writing of this sort is what a Supreme Court Justice should do and it is what David Souter has been doing so carefully and admirably for the past nineteen years.
Spend a little time with some Justice Souter opinions and you will see another mistake in the recent commentary emerging on the Justice's retirement. It is widely said that the Justice came to the court without "an agenda" and never developed one during his tenure. The claim here is that Justice Souter lacks what New York Times reporter Adam Liptak described as "a long-term vision about how to shape the law."
But Justice Souter has such a vision. It is just not one that can be captured by a slogan or a catchphrase. Rather, his vision, manifest in his opinions, is found in the deep conviction that the law is best shaped not by grand theory but instead by judicial craft. The law is so shaped when a judge gives meticulous attention to the case at hand, working carefully and thoughtfully to resolve the present dispute based on the applicable authorities. The law so shaped changes incrementally rather than abruptly as a judge refines longstanding ideas to adapt to developing circumstances.
In short, it is the way the law is shaped when judges like David Souter decide cases. And that is as it should be. I hope his successor is just like him.