Justice Souter makes mark with power of intellect as Rehnquist era nears end


WASHINGTON -- Two years ago, David Hackett Souter's image was dour, indeed: the bachelor no one knew and ascetic New Englander who lived alone in the woods, quietly reading heavy legal tomes by pale candlelight.

After his sophomore year as a Supreme Court justice, however, Mr. Souter already is well on his way to becoming one of the most influential members of that tribunal, regularly displaying the solid capacity of a soon-to-be dominant jurist.

He has been observed closely by court analysts because so little was known of him when he was plucked from obscurity to be President Bush's nominee to succeed one of the giants of modern court history, Justice William J. Brennan Jr.

Because Mr. Souter is an intensely private person who does not yearn to be conspicuous, even in one of the most powerful and public institutions in Washington, what there has been to observe was his role in court hearings and his opinions.

On the bench, he often sits back and down a little in his chair, not returning a smile if one is sent his way, a graying and thin man going on 53 years -- the reserved image that millions of Americans saw on the witness stand before the Senate Judiciary Committee in 1990.

He is a pallid figure in comparison to the man seated to his left, Justice Antonin Scalia, who is vividly charming, verbally combative, openly funny, intellectually spirited -- and occasionally pedantic with recitations of ancient legal maxims in apparently flawless Latin.

But then there will be moments -- last term there were many -- when Justice Souter will lean forward, at seemingly the most critical point in a lawyer's presentation, and the spectators will then be treated to some of the smartest, crispest, clearest, most penetrating questions heard in an entire argument.

A lawyer may try to wriggle away, but such a move is foolhardy. Mr. Souter, patiently but doggedly, keeps pushing to the heart of the matter. He does not indulge in mind-play with far-fetched hypotheticals, as his colleague, Justice John Paul Stevens, does with relish. With austere, incisive inquiry, he gets what he wants -- and, frequently, telegraphs where his vote might go.

Taking either side in Supreme Court hearings is an art form, and Justice Souter has become, in two terms, an artist at it.

When he has been the author of a final decision, he indulges himself just a bit in a moment of solitary judicial theater -- the moment when a justice announces an outcome. Mr. Souter does that with the patience of a teacher, his New England accent evident throughout.

On Monday, he had one of the richer moments of theater yet open to him, as he took his turn -- for six riveting minutes -- to discuss the historic new ruling on abortion rights. It was his dramatic task to explain why the majority had resisted the demands that it overrule Roe vs. Wade outright.

The intellectual force of his written opinions is strong and apparent, as in his separate 23-page opinion when he joined a 5-4 majority to strike down prayers at public school graduation ceremonies.

That was not one of those occasions, and there have been several, when a Souter opinion reads as if it were meant for students of antiquarian English. An opinion of his in a death penalty case, for example, was nearly indecipherable.

This opinion, seemingly most fitting for a ruling of the importance of the school prayer ruling, was a vivid essay on religion and the U.S. Constitution, with a courtly bow to the thought that everyone ought to be sensitive to each other's faith.

And it was an opinion obviously written with full awareness that he was rejecting flatly a constitutional position urged by the administration of the president who had put him on the court.

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