Souter v. Rehnquist: A Few More Views

In Bench-Slapped: Souter v. Rehnquist, Article III Groupie offered her thoughts on possible animosity between Justice David H. Souter and the late Chief Justice William H. Rehnquist. Here's a quick update to that earlier post.

First, please note that A3G and Ann Althouse weren't the only folks who raised their well-plucked eyebrows at Justice Souter's refusal to issue a statement regarding the Chief's passing (as did all the other justices). The brilliant Jeffrey Toobin -- who is a fan of this blog -- also analyzed Souter's dissing of Rehnquist, in a fascinating New Yorker piece about the Rehnquist-to-Roberts transition. Here's an excerpt:

Two Justices were missing [from the Rehnquist memorial service at One First Street]. One of them, Anthony M. Kennedy, had an understandable excuse, for he was at that moment flying back from China. But the question that preoccupied court-watchers involved the other absence: Where was David Souter? And why hadn't he issued a statement about the Chief, like all of his colleagues?

The answers weren't entirely clear. Souter's home in Weare, New Hampshire, doesn't have e-mail, fax, or an answering machine, and he didn't make it back to Washington until the following day. But his absence served as a reminder that Roberts's talents had better include the skillful handling of eccentrics.

Very interesting -- be sure to check out Toobin's full "Talk of the Town" piece here. (And for those of you who live in New York, please note that Mr. Toobin will be sitting down with Mrs. Carmela Soprano herself, the incredibly talented Edie Falco, to interview her as part of the upcoming New Yorker Festival.)

Second, here are a few more views, from UTR readers, on the subject of Souter v. Rehnquist:

1. "Speculation: Perhaps Souter didn't come back on Tuesday because he wasn't crazy about the whole lying in repose thing. (And suspected the Chief didn't either?) No names, no confirmation, pure speculation based on bits and pieces heard around town."

2. "I have heard that Souter was the slowest opinion writer on the Court, and have heard that Rehnquist was not happy when opinions came in late,* and that he was very much concerned with efficiency and punctuality in the operation of the Court. Rehnquist himself dashed off his opinions quickly, and there was even a kind of lazy quality to his opinions in the last ten years or more on the Court. Arguments in opposition to his position (whether made by justices or the parties) were often simply sidestepped and just not addressed. String cites were used to support dubious propositions. And so forth. Very different from Scalia or Souter, and quite different from the early Rehnquist, whose dissents were quite memorable."

"Perhaps Souter felt that Rehnquist was himself sacrificing quality on the altar of efficiency in his own opinion-writing, and resented what he regarded as Rehnquist's insistence that Souter do the same. (Scalia has the ability to be comprehensive in his opinions, to write well, and to get them done quickly, so this issue did not arise with him). Again, pure speculation on my part."

3.  "I have no inside information as to Souter's reason for offering no eulogy for Rehnquist, but my off-the-cuff reaction was to assume that Souter resents Rehnquist because the latter recognized Souter's lightweight intellect and writing ability, and thus almost never gave him an important case to write. I mean, how many landmark opinions has Souter written in his fifteen years on the Court? The only one that comes to my mind (although I haven't done any research on this) is the recent Ten Commandments decision in McCreary, but of course Justice Stevens would have assigned that to Souter, not Rehnquist. And one could not fault Rehnquist too much for taking this approach, as Souter has an amazing ability to make the law more and more confusing with each stroke of the pen."

A3G thanks her readers for these interesting and thoughtful responses. She suspects that the truth may lie somewhere in between all of them (combined with her earlier speculation concerning lingering ill will over Bush v. Gore).

If Judge John G. Roberts, Jr., is confirmed to replace the late Chief Justice Rehnquist, will he have a better relationship with Justice Souter? It's quite likely. Expert Court-watcher Tony Mauro certainly thinks so. And perhaps Souter and Roberts can bond over what they might have in common -- such as a possible shared interest in "birds." (Thanks to Law Dork and How Appealing for the links.)

* Chief Justice Rehnquist's concern for punctuality in the circulation of opinions is confirmed in Professor Richard Garnett's great Slate tribute to the Chief:

For me, maybe the best part of the job was the daily 9:30 a.m. meeting. We'd drink our coffee, talk a bit about football, movies, and weather, and check up on pending cases and opinions. Sometimes [Chief Justice Rehnquist would] wonder aloud why one colleague or another still hadn't circulated a draft. (He was always, though, unfailingly fair and genial about and toward his colleagues; he would never have tolerated from any clerk a snide remark about a justice.)

The obervation that the late Chief was "unfailingly fair and genial about and toward his colleagues" suggests that even if Justice Souter hated Chief Justice Rehnquist, the feeling may not have been mutual.

Comments

[Same Former SCOTUS Clerk]

It's not like Justice Souter spends his summers relaxing in Aruba or riding around in an RV. By all reports, he reads a lot, thinks a lot, reflects a bit--basically does all the background work necessary to remain sharp and well-informed that he doesn't have time to perform while dealing with specific cases during the term. I think it is wonderful that we have a Justice (actually, we have a few but that is beside the point) who use their summers as they were intended. If, in order to do that, he develops a routine that makes him not want to fly back to DC for a memorial/ photo op, then, as long as he expresses appropriate sympathies to the family in private, who cares?

(FWIW, I didn't clerk for Souter and wouldn't count him among my favorite Justices.)

[Mike]

Re: Former SCOTUS Clerk's comment. If Souter wants his summers off, he should teach high school. Souter is a big boy with an adult job that requires him, when the freaking Chief Justice of the United States dies, to send a public note in his official capacity.

[Matt Barr]

Maybe the Chief made Mr. Justice Souter sit through Old School.

[Former SCOTUS Clerk]

Or maybe Justice Souter is a private person who thrives on routine and jealously guards his summer months. He wasn't going to be dragged back to Washington ahead of schedule for an event that was slightly garish and full of pomp. And he wasn't going to disrupt his life and schedule just to draft another press release that repeats exactly what Justices Stevens, Ginsburg, etc. said. I would suspect, though I have no information on this, that he handwrote a lovely condolence note to the Chief's immediate family.