Justice Souter's Jurisprudence
Equally persuasive, and pleasurable to read, is the series of dissenting views that Justice Souter has filed in so-called "federalism" cases, in which the Rehnquist Court crafted ex nihilo new constraints on Congress's power under both the original constitutional and Reconstruction-era amendments to remedy state-level discrimination. In opinions alive to the travails of discrimination's victims, Souter traces a convincing account of our national commitment against the subordination of others. In an era in which Justices can blandly claim to see no difference between Jim Crow and affirmative action, this lively awareness will be sorely missed.
Rather than cede the ground of "original meaning," Justice Souter has filed persuasive accounts of constitutional origins to rebut the reductionist offerings of Justice Scalia in particular. In the school prayer case of Lee v. Weisman, Souter wrote a compelling rebuttal of Scalia's account of the origins of the Religion Clause that will long merit study.
Modesty means that Justice Souter has not obtained the high public profile of some of his peers. Souter has not leveraged his position at the nation's legal apex as have fellow Justices who moonlight as memorialists. Souter even declined to speak with political scientist Tinsley E. Yarbrough, who wrote a biography of the Justice. His response to the prospect of cameras in the High Court? "The day you see a camera come into our courtroom, it's going to roll over my dead body."
