I Remember Just How Smart

USSC Associate Justice David Souter was during the Bush v. Gore arguments. He was brilliant, and of course he stood up for the right of the people to pick their president, unlike the corrupt majority.

It's too bad he's stepping down at the mere age of 39, and as I have written when he announced his retirement, I doubt he would have stepped down at all if McCain had been elected.

This tells a reader about what kind of justice he is:

Constitutional change, he explained, “comes about because judges evaluate significant facts differently,” or they “discover some relevance to a constitutional rule where earlier judges saw none.” He said that “historians can come to the rescue” by explaining how and why this happens. His ostensible text was the Supreme Court’s journey from the “separate but equal” holding of Plessy v. Ferguson in 1896 to the desegregation ruling in Brown v. Board of Education 58 years later.

But there was an unspoken, and more pointed, subtext: his continued dismay at the court’s 5-to-4 ruling two years ago that invalidated the effort by the public schools of Louisville, Ky., to prevent resegregation by use of a modestly race-conscious student assignment plan. The dissenters — and Justice Souter was one — viewed the opinion by Chief Justice John G. Roberts Jr. that this once-segregated city lacked any “compelling interest” in preserving its progress toward integration as profoundly ahistorical and as a troubling signal for the court’s future approach to government actions that touched on race.

Their fears seemed well founded this past week, during the court’s final argument session of the term. The question was whether a central portion of the Voting Rights Act is constitutional, and as the argument progressed, it appeared quite likely that the answer from Chief Justice Roberts and his conservative allies might well be “no.” Nathaniel Persily, an election law expert at Columbia Law School who was in the courtroom audience, wrote later on an election law listserv that Justice Souter looked “visibly angry” during the argument. Professor Persily, reflecting the growing expectation that Justice Souter might soon announce his retirement, added: “I got the sense that he was disappointed that he might be leaving the Court with a dissent in this case as being his parting gesture.”