Souteralia

Associate Justice David Hackett Souter's resignation from the Supreme Court, effective with the conclusion of the 2008-2009 term in June, has already generated a large volume of reporting and commentary. Rather than retread worn territory (particularly the already tiresome rounds of Successor Guesser), we collect a few of the our favorite writings of the past few days and offer just a few abbreviated thoughts in addition.

• Tom Goldstein of SCOTUSblog (and Akin Gump, and Stanford, and Harvard) offered a pair of excellent posts Friday on Souter's "significant legacy" and why people trying to predict Souter's successor "have no idea what they are talking about."

• On Slate, professor at the UPenn law school and former Souter clerk Kermit Roosevelt offers a tribute to Souter's pragmatism and lack of pretension, noting, "He once wrote me a note on a napkin I'd left on my desk rather than using a new sheet of paper."

• And finally, the justices themselves each offered a few parting words to Souter. Meaningless and/or subjective observations: Thomas is the only justice to mention his spouse; Ginsburg and Alito both use "so"as an adverbial intensifier; the Chief's is the shortest; Breyer's contains the oddest bit of phrasing ("a warm personal friend"); Kennedy's is the longest; Stevens's is the only to mention other SCOTUS justices; Scalia's ends with the most poetic juxtaposition.

Balance Problems

One obligatory element of any piece of writing on the Souter retirement is some variation of this statement: "Souter generally votes with the Court's liberal wing, so the president's appointment will not change the overall composition of the Court."

That the Court is neatly divided into liberal and conservative wings is itself problematic. Given particular kinds of cases, one might be able to accurately predict the four votes on either side mapping onto loose definitions of liberal and conservative ideologies. But decisions such as the recent ruling in Arizona v. Gant 556 U.S. ___ (2009), featuring a majority of Stevens, Ginsburg, Scalia, Souter, and Thomas, undermine the caricature of the Court as a four-on-four tug-o-war game (with Justice Kennedy doing his best not to fall down in the mud pit).

The larger problem with the notion that Souter's replacement will simply swap one liberal vote for another is that Supreme Court cases are not decided by secret ballot. Each justice has the ability to affect the others long before the final votes are cast. Jeffrey Rosen wrote Friday about Souter's frequent failure to form coalitions within the Court to gain support for his positions. Rhetorical force, too, goes completely ignored in the present conventional narrative. Advocacy is largely about which side can make the best argument—not merely the most logically sound, but also the most forcefully put.

Consider the difference between Antonin Scalia and Clarence Thomas, two justices who generally have similar political ideologies and overlapping judicial philosophies. Scalia engages heavily with counsel in oral arguments, speaks publicly on his approach to jurisprudence, and writes with a clarity and grace that give his opinions force beyond their facts and legal reasoning. Thomas, in contrast, rarely does any of this. This is not to say that Thomas is not necessarily a smart and thoughtful man; but Scalia unquestionably has much more influence on the Court and the American legal discourse in general.

To say that the next associate justice appointed to the Supreme Court will do little to change the balance is to oversimplify the workings of the Court into a simple arithmetic exercise. We do so at the risk of ignoring the importance of the president's choice.