No Common Man

When retired Supreme Court Justice David Souter died earlier this month, the nation lost a remarkable public servant – and a man who, sadly, predicted with stunning accuracy the constitutional disaster we now face as a nation.

I was an acquaintance of David Souter’s. Our relationship began in the late-1980s when I was a young nonprofit executive director, and he was a justice on the New Hampshire Supreme Court. David was a generous donor to our organization, so I first got in touch with him for what we in the nonprofit world would call a donor stewardship visit. The initial visit went well, and we had more, about once a year for roughly thirty years, long after our donor-solicitor relationship had passed.

The setting was inevitably David’s chambers in the Concord, New Hampshire, federal building, and the timing was always over lunch. David famously would have plain yogurt and an apple, eaten down to the stem, and so I too would bring a yogurt and a piece of fruit, although admittedly my typical lunch would have served up a few more calories than that. David provided black coffee – usually on the burnt side, served in a mug whose enamel carried the stain of hundreds of earlier coffees. And then, after his abstemious lunch, David would break out a tin of homemade sweets, more often than not Jewish pastries. One time I asked him how a man whose bloodlines ran to the 1630 Puritan settlers of Boston developed such a taste for hamantaschen and rugelach. In response, David smiled, mentioned that he had four clerks a year over the course of his Supreme Court career, that many of them were Jewish, and many of those individuals had mothers or girlfriends who baked Jewish treats. David’s clerks (and their families) adored him, and they knew of his sweet tooth. The tins of pastries continued to arrive for years.

David had a gift for putting people at ease. When I or any visitor addressed him, understandably, as “Justice Souter,” David would lean in and say, with a sparkle in his eye, “Please! We’re not in court! Call me David! And I hope I can presume the same degree of informality with you!”

David was a generous man in his charitable giving. Once, when I was part of a solicitation visit, I witnessed David reach for his checkbook and handwrite a $10,000 check for our organization, apologizing all the while that it couldn’t be more, explaining that he had recently made a couple of six-figure pledges to other charities. At the same time, David loved to play up his reputation for parsimony. After one lunch, I carried the black plastic plate David had given me over to the sink. David explained that each year the district court in his building had a holiday party, and each year he took his plastic plate from the party back to his chambers, so he now had a collection of eleven! David took a paper towel that had been draped over the faucet, soaped it up to wash our plates, put the plates on a rack to dry, rinsed out that same paper towel, and re-draped it over the faucet. He saw me staring wide-eyed at the paper towel. “I had a friend up here the other day tell me that I’m the cheapest man in the state!” he said proudly. “And that’s… N’Hampshire!” To pretend to be the cheapest man in our state full of flinty people gave him great pleasure. It was a shtick, but an effective and funny one.

Although Souter’s chambers in the Concord federal building were large, at our lunches it was hard to find a place to put our food and drink, because each and every horizontal surface was covered with layers of books. David was an obsessive reader and was most at home surrounded by books. He shared with me that when he moved to a new home near Concord on his retirement, he had a carpenter install bookshelves throughout the building. When he finished, the carpenter asked, “Judge: Are you really going to put books on every one of those shelves?” When the answer came back in the affirmative, the carpenter went into the basement and spent the next few days doubling up the floor joists to handle the weight.

Over our lunches, more than anything, our discussions indeed centered around books. David’s interests ran from the ancient world to what had happened last week, and all of his reading was historical. (If David read a single novel since college, it’s news to me. He was a nonfiction guy, period.) David’s fascination with history was inextricably connected to his work as a judge. When I met with him in December of 2001, in the wake of the 9/11 attacks, he was reading a series of articles about the 1944 Korematsu decision, wherein the Supreme Court confirmed the authority of the U.S. government to relocate people of Japanese ancestry to internment camps. David saw this as one of the Court’s most shameful and mistaken decisions ever, and he wanted to prepare himself intellectually and emotionally to push back and to avoid a similar misstep in the aftermath of the World Trade Center attack.

One thread in his reading was historical decision-making. David was fascinated with how people in a position of power chose to do the right thing – or not. One book he recommended to me was Kai Bird’s The Color of Truth, about brothers McGeorge and William Bundy, who played key roles in the administrations of John F. Kennedy and Lyndon B. Johnson. David told me that McGeorge Bundy, who was Dean at Harvard College during his undergraduate years, may have been the smartest person he had ever met – and yet, Bundy turned out to be one of the architects of the disastrous and tragic American policy in the Vietnam War. Through his reading, particularly in the Kai Bird book, Souter learned that McGeorge Bundy was raised with a sense of “unquestioned duty to ‘the great man.’ ” Bundy’s father Harvey had served under Secretary of War Henry Stimson, who in turn was serving under President Franklin Roosevelt. Stimson was a Republican, but the Democratic president had asked him to serve, and so he did. Harvey Bundy, in turn, served Stimson, carrying out his orders. The sense in the Bundy household was that if a person rose to high rank, it was for good reason, and the duty of a good patriotic citizen was to carry out that leader’s commands.

David contrasted McGeorge Bundy’s approach to public service with Archibald Cox, a man with a similar blue-blooded New England prep school and Ivy League background. In the early 1970s, Cox had stood up to Richard Nixon as the special prosecutor in the Watergate scandal. David was fascinated to read that Cox had been raised in a home where at dinnertime, when their father stated an opinion, he encouraged his children to offer counterarguments. In the Cox household, the emphasis was on questioning authority and developing independent thought. Clearly, David thought that Cox’s upbringing was the better route for raising good citizens and leaders. When Bundy rose to a position of national influence, instead of questioning the escalation of the Vietnam War by Presidents Kennedy and Johnson, he supported and enabled their efforts. By contrast, when Archibald Cox saw corruption and criminality in the presidency of Richard Nixon, he prosecuted the case with vigor and focus, to the point where Nixon famously had him fired.

David never took himself too seriously, but he took his position as a Supreme Court justice very seriously. He saw first-hand how people in power shrank back from taking correct, if difficult positions. And he worried constantly about the rule of law and the nation.

I was among the 1,200 or so people present in September 2012, when journalist Margaret Warner interviewed the retired Justice Souter at the Capitol Center for the Arts in Concord. The video of that interview is fascinating, and it’s worth spending 80 minutes or so to see David at his most articulate, thoughtful, charming self. But here’s the key moment. At around the one-hour-seven-minute mark, David begins talking about his concern for the low level of civic education in America. He quotes Jefferson saying that an ignorant people can never remain a democratic people, and that democracy can never survive too much ignorance. And then, in words that ring prophetic, David noted:

I don’t worry about our losing republican government in the United State because I’m afraid of a foreign invasion. I don’t worry about it because I think there is going to be a coup by the miliary as has happened in some other places. What I worry about is that when problems are not addressed, people will not know who is responsible. And when the problems get bad enough, as they might do for example with another serious terrorist attack or as they might do with another financial meltdown, some one person will come forward and say, “Give me total power and I will solve this problem.”

That is how the Roman Republic fell. Augustus became emperor not because he arrested the Roman Senate. He became emperor because he promised that he would solve problems that were not being solved. If we know who is responsible, I have enough faith in the American people to demand performance from those responsible. If we don’t know, we will stay away from the polls and we will not demand it. And the day will come when someone will come forward, and we and the government will in effect  say, ‘Take the ball and run with it; do what you have to do.’ That is the way democracy dies.

If there was a clearer prediction of the rise of Donald Trump, I haven’t seen it.

My last lunch with David was six years ago, in 2019. With the onset of the pandemic, visits to his chambers were out, and, though I thought of him often, I failed to get in touch with David to restart our lunches after the pandemic faded. Part of me didn’t want to intrude; part of me was too busy or undisciplined to make it a priority; part of me thought that David was immortal, and I could always see him next year, or the year after that. As it turns out, the last time I saw him was two or three years ago on a Friday night in a local supermarket, where he was pushing a small shopping cart. After greeting me, he pointed to the items in his cart and explained that he had heard that dark chocolate and red wine help preserve brain function as one ages. “I’m not sure if it’s true, but it seems too delightful a notion to ignore!”

Since David Souter’s death, many of the obituaries describe his influence on the Supreme Court as modest. And, indeed, there’s no “Souter doctrine” or particular cases or decisions that are likely to be remembered for decades. David’s determination to avoid the spotlight, his aversion to showboating, and his decision to retire “early” after 19 years at age 69 means that the larger public thought of him as a relatively inconsequential justice. But encomia from his former clerks, such as the New Yorker remembrance by Joannie Suk Gersen, or the conversation with Mary-Rose Papandrea on a recent “Amicus” podcast, reveal David’s humility, brilliance, and kindness. David Souter woke up each morning and set about doing his job and making this nation a better place, without the slightest desire to promote himself. And David’s inherent modesty extended beyond his life, as he forbid any sort of public memorial service.

I assume that David was heartbroken in his final months of life to see the Constitution abused, the Supreme Court dishonored, and the nation falling prey to the very kind of authoritarian rule he grimly predicted a dozen years before. That said, I hope that in his final moments, he realized that he had done all he could to hold back the tide. David recognized that independence of thought – along with a strong moral compass and basic human compassion – should be the central drivers of a life well lived. And nobody personified those values and characteristics better than David Souter.

Copyright Alan Cantor 2025. All rights reserved.