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"Good Riddance" to Retiring Supreme Court Justice Souter

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Nineteen years on the U.S. Supreme Court and David Souter retires like Rodney Dangerfield: He gets no respect. When the liberal press does praise him, it’s for his logic. Really? Let’s parse the premier sample of his logic. He’s credited with the co-authorship of what has been termed the “Mystery of Life” passage in the 1992 ruling in Planned Parenthood v. Casey:

“At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.”

Justice Scalia has made wicked sport of this passage. “Ah, the sweet mystery of life passage…” he says–and then he pounces: “…the passage that ate the rule of law.” Ate it, the co-authors-Souter, O’Connor, and Kennedy–did indeed.

If we analyze that passage, we understand that it must be written about abortion. If we applied it to any other area of life or law, we would instantly take it for the absurdity it is.

Do we really accord everyone the right to define his own concept of existence? Do we then permit all to act upon their self-defined concept of existence?

It may seem harmless for a shortish gentleman in knee breeches, his hand in his waistcoat, and a spit curl in the center of his forehead to think he’s the Emperor Napoleon. But if he actually acts upon his self-defined concept of existence by invading Russia, we go after him with a net.

Imagine, for a moment, we catch Osama bin Laden today. By this evening, he’ll be assigned a government lawyer. Suppose that lawyer has read Justice David Souter’s logical prose in Casey. How could we then prosecute the furry terrorist for his crimes? Was he not simply defining his own concept of meaning, of the universe, and of the mystery of human life? Suppose one’s concept of the universe is a universe without Israel or the U.S.? That’s “the heart of liberty” for Ahmadinejad and his supporting cast of mullahs in Tehran. Who are we to say they’re wrong?

So much for the vaunted logic of Justice David Souter. It’s curious, too, that of the three co-authors of the “plurality opinion” in Casey, neither Souter, nor Sandra Day O’Connor, nor Anthony Kennedy seems to have stepped forward to claim sole credit for that passage of supreme silliness.

Prof. Paul Kengor of Grove City College followed the Souter nomination and his long years of gray eminence on the high court. Kengor read the memoirs of former New Hampshire Sen. Warren Rudman. (You know that Prof. Kengor must be a serious scholar. Has anyone else everread the memoirs of Warren Rudman?) Dr. Kengor describes Rudman’s encounter with Sen. Joe Biden. They met the day in 1992 when Souter joined his colleagues in issuing the Planned Parenthood v. Casey ruling that kept abortion-on-demand legal in America:

As fate would have it, Sen. Rudman and Sen. Joe Biden bumped into each other at the train station, not in Washington, DC but in Wilmington, Delaware.

“At first, I didn’t see Joe; then I spotted him waving at me from far down the platform,” Rudman later recorded in his memoirs, Combat: Twelve Years in the U.S. Senate. “Joe had agonized over his vote for David, and I knew how thrilled he must be. We started running through the crowd toward each other, and when we met, we embraced, laughing and crying.”

An ecstatic Biden wept tears of joy, telling Rudman over and over: “You were right about him [Souter]! … You were right!”

The two men were so jubilant, so giddy-practically dancing-that Rudman said onlookers thought they were crazy: “[B]ut we just kept laughing and yelling and hugging each other because sometimes, there are happy endings.”

You were right, Biden told Rudman. What did Rudman tell his fellow New Hampshireman, Gov. John Sununu? Sununu was the White House Chief of Staff. What did Sununu tell President George H.W. Bush? We know what Bush told us. Somewhere in this shabby tale, someone is lying. Rudman knew what Souter thought about abortion. Rudman told Biden.

I didn’t know what Souter thought–about abortion or about almost anything else. The man was close to being a blank slate. He sailed through his confirmation hearings mouthing platitudes. I recall watching the faces of the pro-life lobbyists outside the Senate Judiciary Committee hearing room. I looked at one of them for some sign. What I got was a look of complete exasperation. Who knows?

My wife knew, or at least she figured it out pretty quickly. Sitting across the breakfast table the Saturday after Souter was confirmed to the high court, my good wife snipped a little squib from the “Style” section of The Washington Post and silently handed it to me. It read: “Newly confirmed Supreme Court Justice David Souter went grocery shopping in his new neighborhood of Georgetown this week.” What I read next caused my heart to sink: “He asked the cashier at the corner market if the can of tuna he’d just bought was ‘dolphin safe.’”

As an ex-Coast Guardsman, I had helped enforce federal laws against the killing of whales and dolphins. I supported those laws out of a heart’s conviction. But I was experienced enough in politics to know that most of those who are vocal about saving the whales are blithely unconcerned about harpooning unborn children.

So David Souter proved to be. Tens of millions of extinguished human lives later, he exits the court–not a minute too soon. Souter’s departure brings to mind Churchill’s dismissal of a long-forgotten foe: “He escapes unsung and unhung.”


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