Academic highlight: Oldfather on the “Inconspicuous DHS” and celebrity culture on the modern court
on Aug 18, 2020 at 10:10 pm
Thirty years ago, President George H.W. Bush made the surprising choice to nominate the enigmatic David H. Souter to the Supreme Court. As Professor Chad Oldfather explains in a new article, “The Inconspicuous DHS: The Supreme Court, Celebrity Culture, and David H. Souter,” we are unlikely to see anyone like Souter ascend to the highest court in the land again. In large part, this is because Souter is perceived as having let down conservatives. “No more Souters!” has become a rallying cry of conservatives, who despaired when Souter joined Justices Anthony Kennedy and Sandra Day O’Connor in a plurality opinion in the 1992 decision Planned Parenthood v. Casey, refusing to overturn Roe v. Wade. But Oldfather, a professor at Marquette University Law School, argues that jurists like Souter will be passed over for another reason as well. As Oldfather puts it, a culture that reveres the “Notorious RBG” will find it hard to value a man whose tongue-in-cheek moniker is the “Inconspicuous DHS.”
From the start, Souter gave the impression of a country mouse overwhelmed by the big city. The week of his nomination, he wore the same suit for four days straight because he failed to anticipate that he would need to stay in Washington for more than 24 hours. He reluctantly left his home in New Hampshire — the same house he grew up in — and chose to live in Southwest D.C., a corner of the city where he would rarely be recognized. A technophobe, he refused to use a computer, instead writing out his opinions in longhand. He rarely socialized, traveled or accepted speaking engagements. He never thought of Washington as his home, telling a close friend that he did not bother to hang his pictures on his walls because “I figured in a few years I’d be coming back to New Hampshire and I’d have to pack them back up, so I might as well leave them in the boxes.” In another unusual move, he chose to retire at the young (for a justice) age of 70, happy to return to a “normal” life in New Hampshire, where he spends much of his time reading.
Oldfather contends that these anecdotes can obscure Souter’s other important qualities — his brilliance and integrity. A brief review of his resume shows that Souter was far more experienced and sophisticated than the caricatures of him suggest. A Rhodes Scholar, Souter attended Harvard College and then Harvard Law School. He spent 10 years in the New Hampshire attorney general’s office, two at its head. He was a trial judge for five years — a position that guaranteed him exposure to the best and worst of human nature — before serving for seven years on the New Hampshire Supreme Court and then, briefly, on the U.S. Court of Appeals for the 1st Circuit. One Department of Justice lawyer derisively referred to Souter as having practiced “cow law,” but those jobs exposed Souter to the messy details of law as it plays out in the lives of living and breathing humans — experience that most of his fellow justices lack.
So why is Souter the last of his kind? Oldfather explores two theories. First, he addresses the conventional wisdom that Souter veered to the left upon taking up his position on the bench. Oldfather rejects the idea that Souter was either unprincipled or that he shifted from the positions he took at his confirmation hearing and in his previous judicial roles. For those who bothered to listen carefully, Oldfather argues, Souter made it clear enough that he was an “old school” conservative — one who valued respect for precedent and incrementalism over a results-oriented jurisprudence.
Yet Oldfather agrees that Souter will be the last of his kind, in large part because his social isolation insulated him from the sort of outside influences that undoubtedly shifted the views of his fellow justices. As Larry Baum and Neal Devins argue in their recent book, “The Company They Keep: How Partisan Divisions Came to the Supreme Court,” the more socially connected justices regularly interact with the same elite networks that supported their nominations and continue to influence them once they reach the bench.
To be clear, Baum and Devins do not consider the influence of elite networks on the justices’ voting patterns to be some sort of quid pro quo, but rather simple human nature. They argue that liberal and conservative justices alike crave validation and approval from their social networks — an echo chamber that pushes them to reach decisions that network approves of, drawing sweeping conclusions and using harsher language than they would have without these influences. Justice Antonin Scalia likely enjoyed being toasted at Federalist Society events just as much as Justice Ruth Bader Ginsburg presumably likes having her face emblazoned on the t-shirts of members of the American Constitution Society.
But Souter operated entirely outside of those networks — in fact, he appeared to detest them — and so he was beyond their control. For that reason, Oldfather suspects those elite networks, which today wield more power over nominations than ever before, will not allow another like him to reach the high court.
The last section of Oldfather’s paper discusses the court’s celebrity culture — a phenomenon recently addressed by Suzanna Sherry and Richard Hasen, among others. Oldfather posits that “inconspicuous” justices like Souter are the best cure for the problem that Sherry colorfully describes as the “Kardashian Court.” But he reluctantly admits that Souter is likely to be the last of his kind for a long while. So he agrees that procedural reforms — such as term limits, anonymous opinions and less control over the docket — might be the only way to put a stop to the justices’ celebrity culture and partisan associations. But for Oldfather, these are all second-best solutions. He concludes his essay with the observation that “No more Souters!” should be viewed not as a rallying cry, but as a lament.