Justice Souter - Patriotism by Procrastination

My first thought upon hearing of Supreme Court justice David Souter's retirement was gratitude. I don't mean that as a backhanded compliment, as if to say I'm glad to see him go. I felt genuine gratitude regarding his public service, especially over the last eight years. Most of what I know about this man is from Jeffrey Toobin's excellent book, The Nine, which paints a penetrating portrait of the Rehnquist Supreme Court. The book describes Souter as an ascetic, almost monk-like intellectual who doesn't own a television and would likely be content to live a life of quiet solitude with only books to keep him company. Apparently, Souter was quickly disillusioned with Washington and was simply not equipped to stomach the posturing, grandstanding, hypocrisy, and ruthlessness of D.C. The most interesting anecdote in the entire book, however, was that Souter, already disgusted with the ethos of the city, considered resigning after Bush v. Gore. Here is an excerpt:

Toughened, or coarsened, by their worldly lives, the other dissenters could shrug and move on, but Souter couldn’t. His whole life was being a judge. He came from a tradition where the independence of the judiciary was the foundation of the rule of law. And Souter believed Bush v. Gore mocked that tradition. His colleagues’ actions were so transparently, so crudely partisan that Souter thought he might not be able to serve with them anymore.

Souter seriously considered resigning. For many months, it was not at all clear whether he would remain as a justice. That the Court met in a city he loathed made the decision even harder. At the urging of a handful of close friends, he decided to stay on, but his attitude toward the Court was never the same. There were times when David Souter thought of Bush v. Gore and wept.

Souter was in a horrible position after Bush v. Gore, of course. To resign in protest might have seemed a noble gesture and would have certainly embarrassed his colleagues who shoehorned W. into the presidency. However, the end result is that he would have exponentially empowered the very man he felt was scandalously installed in office by giving Bush an immediate appointment to the court. (In retrospect, that would have allowed the most incompetent president in our history to appoint a full one-third of the current Supreme Court.)

Imagine coming to work everyday when you've lost all respect for the integrity of your colleagues who you feel have degraded the very institution you revere the most. And it's not as though the man couldn't find rewarding work immediately after leaving the court, either. Instead, Souter acted as a true patriot. This is a man who showed that he actually was humbled by the power of his position, unlike most who mumble similar cliches flippantly. He put his personal interests to the side for eight years, and, given that he has resigned at what is pretty damn close to his first opportunity after W.'s departure, one assumes he has been chomping at the bit to leave. To have the same week give us Souter's selflessness contrasted with Arlen Specter's self-serving shift in political "values" is almost poetic. They could each be the other's foil in a morality play about the struggle between integrity and the allure of political power.

A similar play was already written in prose by Jeffrey Toobin, however. After all, the primary theme of The Nine is that the Supreme Court is as much a political institution, and its appointed inhabitants raw politicians, as their campaign-obsessed counterparts in the other two branches of government. But maybe Souter slipped through the cracks somehow. His critics would have you believe he is a slippery shape-shifter, after all, considering that the George H.W. Bush appointee became a reliable liberal vote on the court. Of course, the opposite is likely true. Sometimes the power brokers in Washington forget amidst the swirling colors of their political kaleidoscopes that the object of their instrument's gaze is simply standing still as they spin, twist, and turn their lens. On the rare occasion they pull their eye away from their toy, they seem stunned to notice that their game was only a distortion of reality and not reality itself. For someone like Souter, who has little time for such childish play, life in Washington was bound to feel unbearable. Lucky for us he cared enough about his country to wait eight years for a return to adult supervision. Thank you, David Souter.