Supreme Court Associate Justice David Souter '66
Feldman and Souter discuss models of judicial decision-making
On his 70th birthday—and the anniversary celebration of the Constitution’s signing—retired Supreme Court Associate Justice David Souter ’66 shared some perspectives on the Constitution and his plans for retirement.
Souter offered his reflections in a discussion with HLS Professor Noah Feldman, who once served as his law clerk, at an Emerson Hall event.
In response to criticisms of the Constitution—which were advanced by a panel of scholars just prior to his appearance (see story)—Souter emphasized that the Constitution was intended by the framers to be a document of “internal conflict.” He highlighted the fact that many of the barriers to efficient governmental action were deliberately placed in the Constitution to prevent the excessive concentration of power at the highest levels: “It is well,” he said, “for ourselves to not let ourselves go too far.”
Because of the document’s inherent competition between values, the Court’s doctrines cannot always be perfectly coherent, he said.
When asked about the value of originalism, Souter said the problem with originalism is that it’s “unlikely to provide you with very specific answers to the kinds of questions that you are likely to ask.” Interpreting and understanding a certain text as it relates to the application of the law often requires a reliance on outside references.
One characteristic of a legitimate constitutional interpretation is that a court must “look to sources of meaning and to guides of how to make practical sense of what the Constitution says that have more authority merely than the preference of the judge who is talking,” Souter said.
Describing himself as a judicial pragmatist, Souter emphasized the importance of making decisions based on the facts in a case, rather than creating new laws that embody larger principles through opinions.
Souter and Feldman on Constitution Day
“Your first job is to decide the case, not to embody principles,” he said. “You may well not be able to decide the case without accepting some legal principles, but make sure you are being honest in your assessment and your respect for the facts first.”
Feldman challenged this apparent minimalist approach to judicial decision-making, asking Souter if in his view, his decisions had been “moving towards a direction” instead of merely interpreting facts. Souter agreed with Feldman’s assessment and said, ultimately, “When one gets to the fork in the road, one has to go one way or the other.”
In his retirement, Souter said, he is working part time for the U.S. Court of Appeals for the 1st Circuit Court in Boston. He is also lending his support to a New Hampshire citizens committee that is exploring a curriculum for civic education in public schools. And, since being a Supreme Court justice left little time for extracurricular reading, he plans to enjoy his “very good, unread library.”
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Adapted from reports by Colleen Walsh, the Harvard Gazette, and Matt Hutchins, the Harvard Law Record, with additional reporting by Emily Dupraz