But beneath that controlled surface, Justice Souter was “shattered,” Jeffrey Toobin wrote in his book on the court, “The Nine,” published in 2007. The justice’s disillusionment was such, Mr. Toobin wrote, that he could not put the episode behind him as the other dissenters managed to do. He seriously considered leaving the court. Persuaded by his friends to stay, Mr. Toobin wrote, Justice Souter never felt the same about the court or his job there. “There were times when David Souter thought of Bush v. Gore and wept,” Mr. Toobin wrote.
His mood gradually improved, but the court’s 2006-2007 term brought another low when a conservative majority under Chief Justice John G. Roberts Jr., strengthened by Justice O’Connor’s retirement and her replacement, Justice Samuel A. Alito Jr., prevailed in a series of important cases. In one relatively minor case, Bowles v. Russell, the 5-to-4 majority ruled that a prison inmate’s appeal was filed too late, even though it was safely within the deadline that a federal judge had mistakenly given him. Justice Souter’s dissent, on behalf of his usual allies, appeared to be addressing broader and deeper issues than the one this single case presented. “It is intolerable for the judicial system to treat people this way,” he said.
He told friends over the years that he wanted to retire but did not want to create another vacancy for President Bush to fill. He sent his retirement letter to President Obama on May 1, 2009, mere months after the new president’s inauguration.
As a retired justice, he sat for several weeks every year with his old court, the First Circuit in Boston. He kept chambers there and in Concord, N.H. He involved himself in New Hampshire life, serving on a state commission to improve civics education, a cause to which he had been recruited by his colleague, Justice O’Connor, whose retirement preceded his by three years. But he made his desire for privacy unarguably clear by giving his papers to the New Hampshire Historical Society with the stipulation that they remain closed for 50 years after his death.
When he received an honorary degree from his alma mater, Harvard, his speech was a sober and obviously heartfelt lesson in constitutional interpretation. The Constitution embodied not just one idea but a “pantheon of values,” he said, and “the notion that all of constitutional law lies there in the Constitution waiting for a judge to read it” was “simplistic.” Such an interpretive approach “diminishes us,” he said.
