May 11, 2009

"When I write, I still am writing for Justice Souter."

Souter's clerks. That quote is from lawprof Heather Gerken.
Meir Feder, one of Souter's first clerks, is a partner in Jones Day's New York office. The Souter takeaway that Feder has internalized is "how hard he worked to get every case right." Feder added, "When he looked at a case, the prior law dictated the reasoning forward from the precedents, not backward from what he felt was the appropriate result."
Of course, that's what they all say, but it's important to believe that's what you're supposed to do and to keep trying.

12 comments:

hdhouse said...

Gosh, maybe this fellow is more inspirational than some of us thought. Not such a bad legacy as legacies go.

k*thy said...

It's important to believe that in what ever you do - always aim for perfection, but know you'll never achieve it.

Palladian said...

Do Souter's former clerks do their current legal writing with quill pens?

rhhardin said...

It's like a large software app with changing requirements; if you try to make something work differently, you'll break a thousand forgotten features that depend internally on its working the old way.

So don't change old stuff.

Instead, for the new feature, convert the new problem to something that the old software handles, and then convert it back at the end.

So the change doesn't interact with the two thousand other features put in long ago and everybody has forgotten the mechanisms of.

From having to debug two thousand new cases, you have to debug only one.

Precendent in the law is similarly dangerous to change. A precedent interacts with a thousand forgotten things that depend on it.

The law has the advantage that it doesn't have to work, however. So it needn't be consistent at any point in time.

Court cases are the endless patching up of bugs as they're discovered that result.

Bissage said...

(1) That was a very nice piece and Justice Souter seems like a very decent fellow. Good for him. And for all of us, I suppose.

(2) Sorry, I can’t think of a joke.

That one about getting 72 virgin law clerks in Paradise just won’t come together.

** sads **

Smilin' Jack said...

"When he looked at a case, the prior law dictated the reasoning forward from the precedents, not backward from what he felt was the appropriate result."

Yet conservative Justices usually manage to "reason" their way to conservative results, and liberals to liberal ones. If that were not so, there would be no point in appointing a liberal to replace Souter, which Ann has said is so important. It's a curious form of "reasoning" that lawyers do...

tim maguire said...

"When he looked at a case, the prior law dictated the reasoning forward from the precedents, not backward from what he felt was the appropriate result."Jack, you are quite right. In fact, I remember Justice O'Connor saying something very much the same about herself and there was no justice more dedicated to finger to the wind reasoning than her.

As for the need to appoint this or that kind of justice, presidents have a poor record of manipulating appointments to acheive a particular ideology on the court (not for lack of trying, of course, but still...)

MadisonMan said...

That one about getting 72 virgin law clerks in Paradise just won’t come together.

That's because the presence of law clerks in heaven presupposes that there are lawyers in heaven.

No.

DJ said...

"When he looked at a case, the prior law dictated the reasoning forward from the precedents, not backward from what he felt was the appropriate result."

Jive. Exhibit A? Lawrence v. Texas. I rest.

peter said...

DJ - Kennedy wrote the opinion in Lawrence, and if you're criticizing Souter's concurrence in the result, maybe you ought to go back and read the opinion. It sure wasn't a stretch from Griswold to Lawrence, especially given that it "was not until the 1970’s that any State singled out same-sex relations for criminal prosecution, and only nine States have done so."

And reasoning forward from precedent doesn't preclude liberals from reaching liberal conclusions and conservatives from reaching conservative ones. Life is remarkably complex, and the precedents rarely govern so squarely the result is plain. In fact, if the result were obvious, the Supreme Court would not hear the case.

Rather, courts need to weigh multiple and conflicting values and purposes served by the rulings in earlier decisions and make an effort to recalibrate those values and purposes in the new case. It is no great surprise that liberal judges might give more weight to liberal values and purposes, and vice versa.

It is neither jive nor intellectual dishonesty. It's known as "judging."

DJ said...

"It sure wasn't a stretch from Griswold to Lawrence, especially given that it 'was not until the 1970’s that any State singled out same-sex relations for criminal prosecution, and only nine States have done so.'"

Except for that little speedbump called Bowers v. Hardwick. Which isn't "precedent", I suppose, if you don't like the result.

Oh, and I know that Kennedy wrote the opinion for the Court. Who could every forget his freedom-to-figure-out-the-mysteries-of-life twaddle? (I'm not a huge fan of Souter's, but at least the guy has the self-awareness not to write junk like that.) But what does it matter if Kennedy wrote it or Souter did? Does "reasoning from precedent" only apply if you write the opinion?

peter said...

Oh yeah, Bowers. That was a brilliant decision. White reasons that the following laws previously declared unconstitutional only had to do with "family, marriage, or procreation":,a law imposing sterilization for certain crimes, a law requiring public schooling, a law forbidding schools to teach foreign languages, laws forbidding the sale of contraceptives to married people and to unmarried people and to minors, laws forbidding marriage between races, and laws forbidding abortion during the first trimester of pregnancy. Since these cases, according to White, only involved family, marriage, or procreation, he could conclude that "we think it evident that none of the rights announced in those cases bears any resemblance to the claimed constitutional right of homosexuals to engage in acts of sodomy that is asserted in this case."

And Burger, of course, cited the Old Testament. Funny how reliance on Leviticus (written in a far away land some 2500-3000 years ago) isn't ever brought up when conservatives complain about the Supreme Court citing foreign law.

In short, Bowers was the intellectual abomination. That's why stare decisis allows for cases to be overturned.