I’m willing to bet that in all likelihood, a large majority of those reading this site do not have kind feelings for retiring Supreme Court Justice David Souter, assuming they have any opinion of him at all. For a certain stripe of religious conservative, for whom an interpretation of the Constitution which forbids the invention of new rights or the support of existing rights relevant to issues of biological life and human sexuality (in short, I’m talking about abortion and same-sex marriage here) is really the only measure of “conservatism” which matters, Souter was a traitor, a judge promoted by Republicans and confirmed by Republicans who started to vote with the “liberals” on the Supreme Court, and that’s that. Well, maybe so. Having become tired myself of the attempts by activists on both sides to articulate their ideologies through the judiciary, I confess that I mostly recuse myself from such arguments. Still, as the nation looks forward to whomever President Obama asks the Senate to confirm has Souter’s replacement, it might be worth taking a moment to wonder if David Souter, an old school local New Hampshire Republican if there ever was one, might not have been the most “conservative” Justice on the bench, after all:

At the relatively young age of 69, Souter is giving up what he once called “the world’s best job in the world’s worst city” for a life of simple solitude in Weare[, New Hampshire]. It is a rural hamlet that fascinates him so much, he has told neighbors he may someday write a history of the town.

When he departs this summer in his Volkswagen sedan — he dislikes flying and always drives himself to and from Washington, leaving at odd hours to game the traffic — Souter will cross the Piscataquog River, drive past country stands selling maple syrup and fresh eggs, and turn down a narrow, unmarked dirt road. Here, at the dead end of Cilley Hill Road, is home.

The crooked, rusty mailbox and the metal horse-and-buggy sign on the red barn door bear the name Souter. The brown paint on the wooden colonial farmhouse is peeling away, the second-floor curtains are drawn, and the windows are sagging with age. A rusted wheelbarrow sits out back, and a bird’s nest rests atop a lantern on the shadowy bare-wood porch. The creaking, unkempt house looks so haunted that some people who passed by said they assumed it had been abandoned. The only sign of cultivation is five daffodils blooming alongside the weeds. But Souter’s home is tranquil, with the quiet broken only by the buzzing of insects, the chirping of birds and the whistling of wind through the soaring pine and maple trees. Souter once wrote in a letter to the late Supreme Court Justice Harry A. Blackmun that he is at peace here during the court’s recesses. “The restoration comes not only from the landscape and air, though they play their significant part, but from the people,” Souter wrote. “I feel a strong need to be in New Hampshire for as much of the summer as I can manage it.”

The farmhouse made national news three years ago, when property rights activists tried to seize it by eminent domain to build a hotel. They were seeking revenge for Souter’s vote in a 2005 ruling that a Connecticut city could take a group of older waterfront homes for development. Their effort failed….

Washington is filled with people who rose from rural roots to political stardom and became fixtures in the capital. But that’s not Souter’s story. He has famously shunned Washington’s glittery social scene and leads an unusually reclusive life for a public official. He dislikes schmoozing at cocktail parties, refuses media interviews and rarely poses for photographs….Souter has a self-awareness about his shyness in public, even joking about his awkwardness to colleagues. “In a perfect world, I would never give another speech, address, talk, lecture or whatever as long as I live,” Souter wrote to Blackmun. “I know you get a kick out of these things, but you have to realize that God gave you an element of sociability, and I think he gave you the share otherwise reserved for me.”

A disciplined man, Souter has been known to work 12-hour days and keep a daily diary. But he cares little for material goods. He appears almost gaunt, and it has been joked that his black robe adds color to his attire. Rather than dining out for lunch, he usually has yogurt and an apple at his desk. “And he eats the apple the old-fashioned New England way: He eats it right through the core,” [Thomas Rath, one of Souter’s closest friends] said. “There is nothing left but the stem.”

Souter is the court’s wealthiest justice, but perhaps its most frugal. He arrived in 1990 with reported assets of $627,010, but thanks to a shrewd investment in a New England bank, he now is worth between $6 million and $30 million, according to his financial disclosures. Yet he resides not in a glamorous Georgetown townhouse but in the same mundane Southwest Washington apartment. One night in 2004, during a jog by himself around nearby Fort McNair, he was mugged. Souter, friends said, never much liked Washington. So he is returning to Weare, a blue-collar and decidedly fiscally conservative town where the big political fight of the day is over whether to charge public high school students to ride the bus to school….

A solitary soul, Souter enjoys hiking mountains and strolling through nearby Clough State Park. At night, he goes for long walks alone, a flashlight guiding him down Weare’s winding roads. Residents can tell he is home by the police cruiser that drives up and down his street by the hour.

Souter is a ferocious reader — he has thousands of books piled up in the farmhouse — and friends said he is eager, finally, to organize them into a library. “He’s given his whole life to public service, and I think it got harder and harder for him to go back to Washington the last couple of years,” said Rath, whose daughter held the Bible at Souter’s swearing-in. “This is where he belongs. It’s a very different world here, one where it’s no surprise to bump into him at the Shaw’s market. He likes that. He’s very comfortable here. Here he’s just David; he’s not Mr. Justice….Everybody needs a place like that.”

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  1. I was with you up to the part where Souter voted against property rights, which, for those on the porch, is a more important subject than abortion rights (from a legal, though not necessarily a moral, perspective) and same-sex marriage. At least it is for me.

    Professor Fox probably knows more about the Kelo decision than I do, but it sure looks ugly at first glance. It also seems like a strange decision for someone who enjoys an old fashioned New England lifestyle and his own private property.

    Let’s hope Obama picks someone who defends property rights.

  2. Yeah, I’ve got to admit Souter’s vote in that case is a bit of a puzzler. I’d have to got back and read the decision through again–I haven’t taught it in a while; a snowstorm killed the day of class this semester when we were going to talk about “takings” as a constitutional issue–to see what Souter’s thinking was. It may be that, kind of in line with his character in general, he felt that is was broadly supported by matters of precedent, which he appears to deeply respect.

  3. “Yeah, I’ve got to admit Souter’s vote in that case is a bit of a puzzler. I’d have to got back and read the decision through again–I haven’t taught it in a while; a snowstorm killed the day of class this semester when we were going to talk about “takings” as a constitutional issue–to see what Souter’s thinking was.”

    Actually there’s a front-porch argument in concurrence with Souter’s judgment on Kelo (rightly decided wrongly reasoned), and that is letting Connecticut decide the issue, not the centralizing power of the Supreme Court and the 14th Amendment. It is through the unenumerated incorporation doctrine of the 14th Amendment, which has used the Bill of Rights to quash efforts by local communities to pursue the good and avoid the evil, namely Griswold (contraception), Roe & Casey (abortion), and Lawrence (sodomy). These are all fruits of the Lochner court which sought to protect the freedom of contract, a property right.

    What is the view of front-porchers? For or against Bill of Rights incorporation? It seems that incorporation has the bane of a front-porcher’s existence for almost a hundred years now.

    For more on this see Healy, Against Libertarian Centralism: http://www.lewrockwell.com/healy/healy4.html

    See also Kinsella, A Libertarian Defense of ‘Kelo’ and Limited Federal Power: http://www.lewrockwell.com/kinsella/kinsella17.html

  4. I would oppose “Bill of Rights incorporation,” but it also seems morally wrong that Connecticut (or any state) has the authority to remove a family from their home, even for the “common good,” since the family is not committing an injustice by being on their property.

    It would be, it seems to me, akin to an act of charity to give up one’s property for the common good, and so the State could not legitimately compel the family as a matter of justice. The community, then, ought to persuade the family to willingly and cheerfully move, or be content with the status quo if they refuse, rather than force the family out.

    Anyway, those are the lines along which my thoughts proceed.

  5. As much as we rightly value the traditions of small-town American life, and admire those with a strong sense of place, we should keep in mind that localism requires more than local people.

    The sort of community praised on this website could once be found almost everywhere in America, and while the powers of this world certainly encouraged the country’s descent into consumerism and mass culture, the fact remains that most localism imploded voluntarily, as people willingly embraced the culture of the automobile and television.

    Loving Weare doesn’t make Souter a conservative – it just means he’s smart enough to recognize a good thing when he sees it. To be conservative, Souter would need to understand how the current order, some of it of his construction, endangers places like Weare, and he would need to take action to ensure that such places do not continue to disappear.

  6. I too am not a great Souter fan, but I am willing to cheer every Prodigal Son’s return home. You should keep a list, Russell, of those who have enough soul eventually leave Washington behind–no matter what their warts and failings they are in these days of iron another Society of the Cincinnati. (Come to think of it, Bill Kauffman must have the list started.)

  7. Like Kate, I applaud Souter’s choice if not his jurisprudence. He was sharply criticized for his rootedness upon his appointment to the Court in 1990. Professor Roy L. Brooks, then of the University of Minnesota Law School, wrote in the New York Times, “Judge Souter’s personal–not his professional–resume raises troublesome questions. We do not see in his past a body of experience with people other than white middle-class males. He resides in a tiny New Hampshire town (population about 2,000), lives in the same small farmhouse in which he was born, has never married and apparently has almost no social life.”
    Supreme Court seats, it seems, are reserved for deracinated careerists who spend their lives with other deracinated careerists. And yeah, Kate, I do have that list going…

  8. As I understand it, the Connecticut Courts decided in favor of New London in the Kelo case before it went to the Federal Level. They agreed that the City was best served by taking private property for a private development and much of it no doubt revolved around power politics and the less than well-maintained character of some of the disputed properties. This development…..while potentially of benefit in opening a new chapter in this moribund but pretty little former whaling city, was a private endeavor and one wonders exactly how much we as a nation want to side with big money and their big plans against the single property owner even if we see a possibility of a greater good for the larger community. This was not a highway or a sewer system or a dock or a train track or any of a hundred other infrastructural improvements with wide benefit to the entire populace…it was a private development and while it may provide jobs and property value increases over time …this is not guaranteed. Of particular note is the Rattner case in Brooklyn…the large metrotech development expansion into the Atlantic yards for a basketball arena and housing redevelopment set in motion under similar arguments and now, after people have suffered from hardball tactics, the project is up in the air because of the financial atmosphere. Sweat equity just don’t cut it @ Gracie Mansion and in Albany..nor, it would seem, Hartford.

    Not to mention, the creepy record of an awful lot of redevelopment in this country….. whiz-bang retail and Cruise line gimcrackery and luxury ghettos tying up waterfront and in general a kind of near-miss architecture that is not near as charming or authentic as naturally evolving development. Souter must have his reasons but being a man in love with a less than stellar maintained antique farmhouse, one wonders at his decision in this case. I thank him for his service and wish him well in fleeing Washington, a place never intended for anything but minimal and part-time presence on the part of our political class.

    Not to mention….there is no small bit of glee in seeing a Federal judicial appointment not follow the script of those who appointed them…it is such an unusual event .

  9. Russell–At the top of the list are two of the noblest figures in modern American politics: the late Barber B. Conable, my old congressman, and Senator George McGovern, who lives in his hometown of Mitchell, South Dakota.

  10. Regarding the Kelo decision, Souter was all over it. Further, though is is often casually portrayed as an individual versus a company, it has deep roots and was in fact a truly fundamental ruling that defines a people, for we either have property rights, or we do not. As much as liberty in general, the right to own, control and use property is also about whether one is free or controlled, a man or a robot, a master or a slave. And the essence of Kelo is whether one has the right to choose to give up their property, or to have it taken away from them by others. Those taking one’s property here would be either the government, in which case it is coercion and hence tyrannical, or society, in which case it is theft enforced by a “tyranny of the majority” (which our Founders abhorred). Souter sided with the tyrants and thieves on this very fundamental issue. For this, he is evil, and I say, good riddance!

  11. I recall being invited to speak at a lunch meeting of bright eyed hill staffers (a group sponsored by Senators Santorum & Brownback). After my localist rant, I was asked what they could do, and I said quit your jobs and go back to your hometowns. Needless to say I haven’t been invited back.

  12. Dear Bill Kauffman (if you are still watching this thread):

    I’m leaving this message because I don’t know how to contact you any other way.

    When will we see a Bill Kauffman web site, or clearinghouse, where all of your articles are posted and accessible? I am getting tired of trolling around all over the Net seeking out the latest of your excellent writings.

    Please help!


  13. Thanks for the kind words, Jason. I’m afraid that if I herded my hundreds of fugitive pieces into a single clearinghouse they’d spend all their time grousing about the warden and plotting a prison break!

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