"Have you read Proust?" Justice Souter asked near the beginning of my interview for a clerkship last March. We were talking about Henry Adams, the subject of my college thesis, and so the question was unexpected. I hadn't gotten very far, I confessed; but Justice Souter was sympathetic. "I failed, too, when I tried the first time. But then I read him in a gulp one August, and was struck by the cumulative effect of the prose." Suddenly he smiled. "If I could take a year off from this job, I'd like nothing better than to go to a small college and teach a comparative seminar on Adams and Proust. The similarities are remarkable." Quoting from memory, he then recited the last sentence of The Education of Henry Adams: "Perhaps some day, -- say 1938, their centenary, -- [Adams and his friends] might be permitted to return together for a holiday ... and perhaps then, for the first time since man began his education among the carnivores, they would find a world that sensitive and timid natures could regard without a shudder."
Souter's affinity for Adams and Proust reveals qualities at the core of the man and his jurisprudence. (When I wrote to Souter, asking permission to describe our conversation in this article, he wrote back: "I have no objection to your saying something about my fantasy of teaching an Adams-Proust course"; he then repeated his original conceit about Proust: "If you can spare the time, read it in a gulp.") For the resemblances between Adams, the aesthetic Puritan, and Proust, the bed-ridden aesthete, are veiled but intense. There is a thin-spun quality to both men: both were concerned with the philosophical uses of timidity and felt free to exercise their power by hiding it behind a carefully constructed appearance of fragility. Both lived as hermits in the city, drawn to society but holding themselves apart from it. By cultivating some of the same qualities, Souter has endeared himself to his clerks, friends and colleagues, and has become increasingly influential on the Court. But his emerging jurisprudence of "passive virtues" is far less passive than it appears.
It is not hard to understand Souter's identification with Adams, who was born in 1838 but who claimed to have received an eighteenth-century education that failed to prepare him for the brutal "multiplicity" of the twentieth century. Souter was also derided as an "eighteenth-century man" during his confirmation hearings; and his quaint horror of modernity has been much remarked upon. He has never used a computer and instead drafts letters and opinions in an elegant, spindly hand, with a black rollerball. He has a weakness for eighteenth-century diction -- preferring "enquiry" to "inquiry," for example. Although he appreciates good writing, his own is remarkably turgid. ("Time for me to put some lead in it," he joked after a clerk gave him a particularly fluid draft.) When another clerk lent him Pretty Woman on video, he was unable to watch it because he has no VCR at home and couldn't figure out how to use the one at the Court. One of his most up-to-date appliances is the fifteen-year-old turntable on which he listens to L.P.s of his favorite composer, Johann Sebastian Bach.
But with Souter, as with Adams, the eighteenth-century manikin is a literary conceit that obscures more than it reveals. You do not progress from Harvard to Oxford to the pinnacle of New Hampshire politics to a position of leadership on the Supreme Court by being radically out of step with your time. Justice Harry Blackmun deserves to be taken seriously when he told a Minneapolis Judicial Conference last summer that Souter "may be the only normal person on the Supreme Court." What makes Souter "normal" is the appealing ways his diffidence has been harmonized with his ambition. On the Court, as in New Hampshire, his exquisite manners, self-abnegating modesty and palpable concern for his colleagues and subordinates have continued to support his ascent.
The manners are obvious to all visitors to Souter's chambers. Clerks insist that he treats everyone, from messengers to the president of the United States, with the same easy respect. The unpretentious courtesy extends to his style in chambers and at oral argument, which one clerk compared to that of William Shawn. "When I read those tributes to Shawn, describing how he teased out your half-baked ideas and made you feel as if you'd come up with a fully formed argument, I thought of Souter discussing a case."
Souter also has a whimsical, if weirdly garrulous, sense of humor that he sometimes shares with his clerks. One clerk, for example -- call him Smith -- had a habit of rifling through Souter's junk mail and aimlessly scribbling jokes. Souter laid a trap for him by dictating a letter and placing it in an envelope he knew Smith would open:
Having a tough time keeping up with the News? The reason may be postal theft. Do you suspect an employee of ransacking the mail for important periodicals addressed to you? Are your magazines being stolen by someone you trusted? Don't get mad. Get sad! Yes, Get [Smith's] Annotated Digest! Every week, [Smith's] Annotated Digest of Stolen Periodical Literature(or sad, to a growing cult of victimized insiders) will give you a peek at what you've been missing. And then some!...
But Souter's self-effacing modesty should not be mistaken for insecurity. On the contrary, it reflects -- and usefully conceals -- an unflappable self-confidence. Unlike Blackmun, who agonizes endlessly over decisions and has his clerks write exhaustive summaries of the briefs, Souter takes his own extensive notes and does not appear to have second thoughts. Unlike Clarence Thomas, whose intellectual insecurity leads him to hire only the most virulent conservative ideologues as clerks, Souter enjoys being challenged by liberals. Unlike Sandra Day O'Connor, who can get rattled by Scalia's bullying, Souter is amused by what he calls "Nino blowing off steam." Last June, for example, when Scalia ranted at Souter for following two inconsistent decisions by John Marshall, Souter replied, deadpan: "The dissent accuses us of repeating what it announces as Chief Justice Marshall's misunderstanding ... of his own previous opinion. We are honored."
Souter, in short, is a very nice man; and his unthreatening confidence has helped him to become a mediator and conciliator between the competing factions on the Court -- from Justice William Brennan, whose long hug of welcome Souter described with unembarrassed warmth at the Harvard Club in October, to Scalia, who brought him a portrait of an obscure New Hampshire justice as a token of friendship. But though a very nice justice, Souter cannot yet be called a great justice. In fact, the qualities that are admirable in his character -- self-confidence masked by diffidence -- are less admirable in his jurisprudence. For Souter is increasingly allying himself with a judicial tradition that cloaks its assertiveness in a tendentious rhetoric of restraint.
"He has a vision of the Court as a moderating influence," says his friend Rath, "to serve as a unifying part of the country, between the more partisan executive and legislative branches. I think there is a central core of David Souter that sees the Court as a conciliator and legitimizer, bringing society together." Rath claims that Souter has shared this vision with his friends ever since he was a judge in New Hampshire. But Souter's moderating vision is hardly a modest vision. On the contrary, it builds on a grandiose view of judges associated, most prominently, with two disciples of Felix Frankfurter: Justice John Harlan and Alexander Bickel of Yale.
There is a cult of Harlan among conservatives and liberals on the Court today, and Souter is jockeying for high priest. (At his confirmation hearings, Souter called Harlan his judicial hero.) In the abortion decision last July, Casey v. Planned Parenthood, Harlan's name was invoked no fewer than ten times, by the majority and the dissents. But Harlan's reputation as a judicious moderate is ripe for re-examination. In a recent issue of the New York Law School Law Review devoted to Harlan's centennial, Bruce Ackerman of Yale, a former Harlan clerk, shows how Harlan's jurisprudence exalted judges in the name of restraint. Claiming a special ability to discern the unwritten "traditions" of Anglo-American people stretching back to the mists of Runnymede, Harlan had a tendency to dilute rights explicitly enumerated in the American Constitution, to invent rights that were not and to balance the interests of the individual and society guided by little more than his own sense of fair play.
Bickel has similar flaws. In The Least Dangerous Branch, Bickel anticipated Souter's argument that the Supreme Court is "a legitimizing force in society." Since "neither force nor will" supports its decrees, Bickel said, the Court should be guided by "the passive virtues," going to great lengths to avoid making decisions that the political branches and the people are unlikely to accept. Bickel's passive-aggressive vision, much of it worked out in these pages, has not worn entirely well. As Gerald Gunther of Stanford has noted, under the guise of self-abnegation Bickel demanded essentially unfettered personal discretion for judges to decide whether or not they thought it prudent to enforce the Constitution's commands.
The influence of Harlan and Bickel converges in Souter's most grandiose opinion, his contribution to the abortion case. To overrule Roe v. Wade "under fire," Souter wrote, would be seen as a "surrender to political pressure," undermining the Court's legitimacy; and "if the Court's legitimacy should be undermined, then so would the country be in its very ability to see itself through its constitutional ideals." The circularity of the logic is exquisite. It was Roe's failure to make persuasive constitutional arguments that made the Court look political and illegitimate to begin with; and by reaffirming the result without defending the reasoning, Souter's opinion appears more quintessentially political than Roe itself. (It is also difficult to make sense of a theory of precedent that feels free to jettison Roe's trimester system, which many considered the heart of the decision, and to overturn at least two other decisions concerning waiting periods and parental notification, all in the name of continuity.)
Casey is the archetype of Souter's least convincing opinions: he tends to be most arbitrary when he tries to be most pragmatic. In Walter Nixon v. U.S., decided in January, Souter agreed that the Senate has broad discretion over the mechanics of impeachment. But instead of focusing on the text and history of the impeachment clauses, he quoted Bickel on the importance of not embarrassing the political branches. Vaguely suggesting that some impeachment proceedings might justify more searching review, Souter refused to say precisely when or why. The gist of his breezy concurrence: an impeachment is constitutional unless I think it isn't.
Finally, in Barnes v. Glen Theater, Souter properly distanced himself from Chief Justice William Rehnquist's coarse suggestion that moral disapproval alone might be enough to ban nude dancing. But Souter voted to uphold the ban anyway, because he thought it conceivable that nude dancing might produce "pernicious secondary effects," such as prostitution and sexual assault. There was no evidence to support this odd theory, however, since it had not occurred to any of the parties. "Pasties and a G-string moderate the expression to some degree, to be sure, but only to a degree," Souter concluded. This is the opinion of a man who has not spent much time in topless bars; and it is a personal opinion, not a principled one.
If all of Souter's opinions were devoted to balancing, conciliating and splitting differences, then he would be scarcely more interesting than Lewis Powell, a less colorful Harlan clone. But Souter is often much more interesting. He can be, when he chooses, a sensitive and rigorous interpreter of text and history, and is one of the few justices engaged enough to challenge Scalia on his own terms. In Lee v. Weisman, the school prayer case, Souter's account of the original understanding of the religion clauses was more persuasive than Scalia's (see "The Leader of the Opposition," TNR, January 18). And a few weeks ago Souter again beat Scalia at his own game in the Operation Rescue case. Scalia concluded that a Civil War statute did not prevent Operation Rescue from barricading abortion clinics because there was no evidence that the protesters had a "discriminatory animus" against women. Souter pointed out that the "discriminatory animus" requirement appears nowhere in the text of the law, but was invented by the Burger Court. By parsing another part of the law that Scalia had ignored, Souter proposed an alternative way of protecting the women and punishing the protesters.
The greatest virtue of Souter's emerging jurisprudence, however, is its candor. In statutory interpretation, Souter is scrupulous about explaining the cannons of interpretation that guide his decisions and, when he chooses to depart from them, explaining why. When he performs his balancing acts in constitutional interpretation, at least he takes care to divulge the considerations he has balanced. Even Souter's abortion decision, for all its flaws, is startlingly -- almost excessively -- frank. In the November issue of the Harvard Law Review, Kathleen Sullivan of Harvard argues that judicial formalists are often no less arbitrary than judicial pragmatists, prejudging the outcome of cases by the categories they choose to impose. Perhaps the most that can be expected of the heirs of Frankfurter, in the end, is full disclosure.
Given Souter's self-confidence, honesty and intellectual engagement, he has the potential to become a very good justice, or possibly even a great one. If he "grows," as he is likely to do, he will grow more subtly than Blackmun, whose votes simply became less predictably conservative and more predictably liberal. Perhaps Souter's decisions instead will become less result-oriented, less subjective and more deeply rooted in text and history. And there is a purely aesthetic value to the unity between the man and his jurisprudence that Souter has started meticulously to construct. Like Adams and Proust, who searched for artistic and philosophical unity by writing spiritual autobiography, Justice Souter seems to be struggling, in his own, more modest way, to justify himself.