The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Remembering David Souter
Recollections of a true gentleman
Justice David Souter passed away last week. I clerked for him early in his tenure on the Court, in October Term 1992, and ever since the news, I've been thinking about him—talking with friends, family, and former colleagues who've reached out to share memories and condolences.
To be honest, I hadn't planned to write anything about my time with him. He never cared much for public tributes, and I have always felt awkward telling stories about him, even good ones. I wasn't a close friend or confidant, just one of his former law clerks, and I didn't want to presume on my association with him. But I've come to feel that sharing a few memories, especially those that highlight what kind of person he was, might be helpful. Someday, historians will write about him. Maybe personal recollections like mine will add something.
Justice Souter was a remarkable person and a true gentleman. He never had his head turned by Washington. That's an astonishing virtue. Washington is full of people with relatively unimportant jobs—chief assistant to the assistant chief—who nonetheless lord it over others. Justice Souter, who held one of the most powerful positions in the country, never made an issue of it. He simply did his job as he saw best. His rulings disappointed conservatives, but it's wrong to maintain, as some do, that he changed his views because of praise from Washington insiders. He didn't pay attention to those things. His fundamental convictions, in which he had great confidence—those of an old-fashioned, Yankee Republican—were always his own.
When I clerked for him, he was in his early 50s. I remember him once casually remarking in chambers, "I'll do this job until I'm 70, and then I'll go home"—meaning, of course, New Hampshire. At the time, I doubted him. Supreme Court Justices rarely resign. It's too good a job, and besides, most come to identify so completely with the role that they have a hard time giving it up. But he did what he said, retiring at the age of 69. I have read that he timed his retirement to coincide with a Democratic president, and maybe that's true. But I know it wasn't the sole reason. He had talked about it long before.
His relationships were not transactional. He treated everyone courteously, including those who could do nothing for him in return. Years after my clerkship ended, he maintained a warm correspondence with my family, who had met him once or twice during my time at the Court. "What a gentleman," my mother would say, after reading one of his charming, handwritten notes, always signed, "David." My brother proudly framed a witty, self-deprecating letter that the Justice once wrote to him about long-distance running. Now that my brother has passed away, I have it in my own home.
Justice Souter could easily have asked someone to type and autopen those letters for him or not written them at all. But I'm sure it never occurred to him. And it wasn't only my family members who received such letters. He did the same for the families of other clerks.
One memory from that year stands out for me especially. As a clerk, one of my responsibilities was proofreading final drafts of opinions. It was a routine thing, but on one such occasion, when Justice Souter was writing the opinion for the Court, I accidentally inserted the word "not" into a sentence, reversing its meaning. By the time I discovered my mistake, Justice Souter was already on the bench announcing the ruling, and the clerk's office had already released the opinion to the press. There was no way to fix it.
I was mortified. I had messed up a Supreme Court opinion, and in my head, I was already becoming a cautionary tale: "Remember the law clerk who did that?" My co-clerks commiserated with me and agreed that the only thing to do was wait for the Justice to return to chambers and tell him what had happened. It was a long couple of hours. I walked around the block a few times and then, when the Court broke for lunch, knocked on the boss's door. I half expected to be fired.
When I told him what I had done, he shook his head and chuckled. He said to let the clerk's office know so they could issue a corrected opinion. "Listen," he said, and he told me the perhaps apocryphal story of the young New York lawyer who had cost his client millions of dollars by accidentally including too many zeros in a bond debenture. "That's the sort of mistake you worry about, not this," he consoled. "Just take care of it." Greatly relieved, I followed his advice, and the clerk's office quietly issued a revised opinion. As far as I know, no one on the outside has ever been the wiser—until now, that is.
The Justice joked with me about the episode once or twice that week and then seemed to forget about it. But I never have. More than 30 years later, I remember his kindness and generosity to me at that moment. In Washington, many in much lesser positions would have reacted differently. I have known a few of them, myself. But Justice Souter was a man of warmth, humor, understanding, and loyalty to all those fortunate enough to work for him. I will always feel grateful for that, and loyal to his memory, in return.
May he rest in peace.
