Souter: star amid dim constellation

Justice David Souter could probably walk into a popular Washington, D.C., restaurant and not be recognized by 49 out of 50 diners.

In this celebrity-conscious land, the Supreme Court justices rank well below Britney Spears, Paris Hilton and The Simpsons in public recognition. The Supreme Court itself is a virtually unknown body unless it hands down decisions stirring outrage on issues like abortion and flag-burning.

Souter will happily retire this summer, going counter to the dictum of Jefferson that few in power die and none resign.

Souter had no flash, no dash, no flamboyance. He was quiet and unassuming, But he was a sterling man and a fine justice. He was decent and humane, so unlike the Five Horsemen of Reaction who control the court today.

Souter refused to join the court politicians who turn their prejudices into legal principles. He refused to join them in ruling for corporations, property and business. He chose the side of the angels: people, consumers and justice.

Adam Liptak, Supreme Court reporter for the New York Times, has written supercilious stories declaring that Souter was a careful, “a low-impact justice.” Liptak compounded the insults by writing that Justice Scalia has a judicial philosophy while Souter has none, that Scalia is highly quotable while Souter is not.

Memo to Establishment journalist Liptak: 50 Scalias are not worth one Souter.

The Supreme Court has had 110 justices. None wrote as well as Oliver Wendell Holmes whose opinions are studded with aphorisms and wonderful philosophical asides. But most of the justices have been poor writers, including the outstanding Justice Brennan.

What counts is decisions, not how well justices write or how much they are quoted.

Perhaps Souter’s most memorable decision was Casey, reaffirming the constitutional right to abortion. He led the court in reversal of a black man’s conviction of killing a white woman because the jury was nearly all white. He cast the pivotal fifth vote to uphold affirmative action.

But it was in dissent that Souter stood out. When the court upheld the notorious three-strikes-and-you’re-out law, Souter dissented. He noted the absurdity of sending a man to jail for life for a third felony like stealing a golf bag.

He dissented when the court struck down the Violence Against Women Act, calling the ruling a woeful misreading of the Constitution. When the economic royalists killed the overtime pay provision of the Labor Standards Act, Souter dissented. He denounced the violation of civil liberties and equal protection.

When the court killed a provision of the Americans with Disabilities Act, Souter complained in dissent about the court’s “crabbed version” of the law. When the court upheld a law requiring the National Endowment of the Arts to take into account so-called decency, he rightly dissented.

He was dismayed when the court overturned an effort by schools in Louisville, Ky., to prevent resegregation. His dissent called the ruling profoundly unhistorical.

When the court ruled that public schools must be open to Bible study groups, Souter dissented because of the clear violation of the wall between church and state. When the Unholy Five smashed that wall by saying that the University of Virginia must subsidize an evangelical magazine, Souter dissented. He decried the violation of the First Amendment in approval of state funding for religion.

However, Souter was clearly wrong about one thing: cameras in the Supreme Court. He insisted that “the day you see a camera coming into our courtroom it’s going to roll over my dead body.”

The courtroom is a sacred place. But the “nine old men” adamantly refuse to enter the Digital Age. The Supreme Court is an appellate court. It studies the facts and decisions of lower courts.

Unlike jurors, the justices are not persuaded by emotions, by the tricks and pyrotechnics of trial lawyers. The Supreme Court deals with substantive constitutional issues. It would enlighten citizens to see and hear the oral arguments presenting the pros and cons of an issue, the fierce questioning by the justices.

Skelly Wright, the late, great appeals court judge, rightly argued that televising oral arguments would “be a matchless lesson in the meaning of our constitutional rights and principles.”

Justice is supposed to be blind--but not invisible.

Finally, a confession. I wrote after Souter’s appointment that nothing in his background indicated he would rise above mediocrity. So much for the omniscience of columnists!

Souter had a marvelous capacity for growth, a quality alien to the “brilliant” Scalia. Souter became a bright star among a dim constellation of reactionaries.