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David Souter

Moot court judge and swordfighter Souter

Retired Justice David Souter may have retired from the bench, but he still judges moot court competitions.

The retired Supreme Court justice visited his alma mater Harvard Law School to judge the final round of the Ames Moot Court competition, according to a press release from the school. The release touts that  the competition “stands out for its rigor” in part because of its ability to draw Supremes. (As a side note, this writer also argued before Souter at a moot court competition years ago, across the Charles River from Harvard at Boston University School of Law. So we were fancy too.)

The press release does contain an interesting piece of trivia: as a law student Souter, described as a “wild card” ended up in student health services for injuries he sustained in a casual swordfight.


Souter’s a draw

Want to draw a big crowd at an event about the Constitution? Then make retired Justice David Souter your headliner.

Organizers of an event “Constitutionally Speaking,” which is aimed at engaging New Hampshire citizens in a debate about the document at the heart of the nation’s government, had to switch venues to accommodate hundreds of people who were on the waitlist to hear Souter speak. Even though the move opened up 400 more spots for the Sept. 14 event, the event still sold out – requiring the organizers to create yet another wait list.


O’Connor and Souter talk diversity and cameras in the Court, get laughs (access required)

During a recent discussion in Boston, retired Justices Sandra Day O’Connor and David Souter chatted with veteran Supreme Court journalist Linda Greenhouse about how the public image of judges – including Supreme Court justices – has changed over the years.

Speaking at the John F. Kennedy Presidential Library and Museum in an event broadcast on C-SPAN, O’Connor noted that the biggest change on the Supreme Court is the new diversity on the bench.

She said she was struck by it while watching a recent oral argument.

“I sat there, and I looked up at the bench,” O’Connor said. “Nine positions. And it was absolutely incredible: on the far right was a woman. Boom, boom, boom,” she said, her hand motioning to describe the justice’s positions, “was a woman. On the far left was a woman. Three of them! Now, think of it! It was incredible!”

O’Connor said the changes were a long time coming.

“You know it took 191 years to get the first” woman on the Court, she said to laughter from the crowd. “And we’re moving a little more rapidly now. I was pretty impressed.”

Souter, noting the genders of the three panelists, got the biggest laugh when he added: “Well, heck – look at this group here. I’m here for diversity!”

Greenhouse noted that most Americans don’t get a chance to see the diversity on the Supreme Court from themselves. Cameras are barred from the Court, so only those who travel to Washington to see live oral arguments see the image of the full Court.

“Here we are on C-SPAN, and C-SPAN has a dog in that fight,” Greenhouse said, noting the network’s long advocacy in favor of allowing cameras at the Court.

Souter, who once famously said cameras would be allowed in the Court “over my dead body,” hasn’t changed his mind.

“[That’s] a fight which I hope C-Span loses,” Souter said.

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Stevens, O’Connor and Souter making the case for SCOTUS term limits? (access required)

The New York Times‘ Linda Greenhouse wonders if Justice John Paul Stevens’ recent post-retirement appearances – and the chords they are striking – make the case for term limits on the nation’s highest court.

In her latest “Opinionator” essay, Greenhouse clarifies that she doesn’t believe Stevens should have left the bench earlier than he did. Rather, she points out the value of the retired justice as someone who, like Stevens, can become a “public truth-teller” – and even a judicial “rock star.”

“Not so long ago, it was typical for justices to remain on the court until they died (the exit strategy of 49 of the 103 justices not currently serving) or became enfeebled by age (recall the explanation that Justice Thurgood Marshall gave when he retired in 1991 at the age of 83: ‘I’m old and falling apart,’)” Greenhouse wrote. “I can’t remember when the country was blessed by the presence of three retired justices who can get themselves from one place to another unaided.”

Indeed Stevens, 90, as well as retired Justices Sandra Day O’Connor, 80, and David Souter, 71, have all been active, visible and vocal since leaving the bench. O’Connor and Souter even continue to work, sitting on lower courts and hearing appellate cases.

Stevens most recently made headlines over his candid comments regarding the death penalty. During the course of his tenure on the Court, his stance on the issue changed: while his early rulings upheld the death penalty over Eight Amendment challenges, he later wrote – often in dissents and statements in capital cases – that he believed the way the system was administered is unconstitutionally cruel and unusual.

Stevens even recently penned a book review of David Garland’s Peculiar Institution: America’s Death Penalty in an Age of Abolition in the New York Review of Books essay, noting that two years ago Stevens called capital punishment “the pointless and needless extinction of life with only marginal contributions to any discernible social or public purposes.” He also appeared on CBS’s “60 Minutes” last weekend, showing he has no intention of slowing down.

Souter’s working retirement

If you are arguing before the 1st Circuit Court of Appeals, you may be surprised by who find sitting among the judges on the panel.

Justice David Souter may have retired from the U.S. Supreme Court, but he is not tired of the law. He travels from his New Hampshire home to the downtown Boston courthouse one of two days a month to hear appellate cases arising in the Northeast.

And he still takes judging very seriously, according to a report by the Associated Press. During recent oral arguments, Souter – using his trademark polite-but-to-the-point style – questioned New Hampshire attorney Sven Wiberg.

“May I ask you a question?” Souter began, sounding almost like his soon-to-be retired colleague. “I will tell you, you do not have to answer it as far as I’m concerned. Do you believe you have a good faith basis in law to make that argument?”

Souter is not the only former Supreme who is still working. Retired Justice Sandra Day O’Connor also continues to hear cases on lower courts. She also travels the country advocating for causes like boosting civics education and ending judicial elections.

Friday morning docket: Club Med-mal

Yesterday the White House gave us a few more details about the administration’s proposed state-level medical malpractice reform demonstration programs. People are reacting, but no one on either side of the debate seems particularly excited about it.

American Association of Justice President Anthony Tarricone said the programs could hurt victims of medical negligence. “Forty-six states have already enacted tort reform and health care costs continue to hurt the pocketbooks of American families,” he said in a statement yesterday.  “Because of these tort reforms, patients injured through no fault of their own are often unable to seek justice.”

The Chamber of Commerce’s Institute for Legal Reform, which was strongly pushed for the health care reform package to include some tort reform measure such as health courts, also doesn’t like the plan all that much. “While we are encouraged that the Obama Administration has made medical liability reform part of their overall health care package, the $25 million state grant program announced today amounts to about 1-40,000th of one percent of the cost of a one trillion dollar health care bill,” said Lisa A. Rickard, ILR’s president. “Studies have shown that meaningful medical malpractice reform can save from $120 billion to as much as $500 billion over a decade. But a small medical liability grant program will not be effective, and will preserve the status quo when it comes to medical malpractice lawsuits.”

Meanwhile, one potential method of med-mal reform – requiring a malpractice lawsuits to be accompanied by a certificate of merit by a medical professional – was thrown out in one state yesterday. The Washington Supreme Court held that the requirement impedes access to the courts and violates the state constitution’s separation of powers clause.

In other news,

Senate’s med-mal plan: Sen. Max Baucus’ health care reform plan contains no concrete tort reform mandates, but the proposal would encourage Congress to “consider establishing a state … program to evaluate alternatives to the current civil litigation system.” (Lawyers USA)

If you don’t do the crime, you don’t have to do the time: Violent crimes in the United States fell in 2008, and so did incarceration rates. The Federal Bureau of Investigation sees a connection there. (Lawyers USA)

One less legal problem for former AG: A federal judge dismissed a civil lawsuit against former Attorney General Alberto Gonzales, rejecting job applicants’ claim of being blacklisted from the Bush administration’s Justice Department based on their ideology. (WaPo)

Constitution Day trip. Retired Justice David Souter celebrated Constitution Day – which was also his birthday – talking constitutional law at a Harvard panel. (Harvard Crimson) (See the archived webcast of the event here)

Filling a vacancy: The Massachusetts House of Representatives passed a measure that will allow Gov. Deval Patrick to temporarily fill the seat left vacant by Sen. Edward Kennedy’s death. It could become law as early as next week. (Boston Herald)

Birther defeat: A lawsuit by a vocal leader of a group claiming President Obama wasn’t born in the U.S. was thrown out of court this week. (KCAL, CBS News)

Less money, more problems: A federal judge in California is resigning to go into private practice, saying his judicial salary is too low to let him support his seven children. The move draws attention to an issue that has been a priority for Chief Justice John G. Roberts, Jr., who has urged an increase in judicial salaries each year since being seated on the High Court. (Reuters)

Souter at 70

The last time a former Supreme Court justice celebrated his 70th birthday after leaving the bench was on June 19, 1980, when Abe Fortas was the birthday boy.

Now, nearly three decades later, it has happened again. Today retired Justice David Souter turns 70.

And now the new septuagenarian is spending much of his time focused on civics education. After giving a speech on the topic at the ABA’s annual meeting this summer, Souter is now urging the New Hampshire Supreme Court Society to come up with more specific ideas about increasing civics education in grade schools.

Souter trades farm house for swanky pad – and books

Outgoing Supreme Court Justice David Souter won’t be spending his retirement days in his storied New Hampshire farmhouse after all.

It seems that his old rustic pad in Weare, which has no phone lines, but plenty of peeling paint and rotting support beams, can’t hold the huge library of books that the jurist has amassed, according to The New York Times. So Souter will trade it for a “swanky” half-million-dollar home just a few miles away in Hopkinton, N.H.

Instead of rickety wood, Souter will have a quant, white Cape Cod-style house with attached garage. Instead of the rustic wilderness, Souter will enjoy over two acres of manicured lawn and trimmed hedges. Instead of quiet wilderness, he’ll have a gym and spa.

His neighbors are sad to see Souter leave his old home. “It was quite a shock to us to learn that he’s moving,” Betty Straw, Souter’s sixth grade teacher, told the Times. “While we’re sorry – we had hoped he would come back to Weare – we understand the circumstances. It seems more desirable to make a move, and we have to abide by his decision.”

Breyer remembers confirmation stress

Even for the most uncontroversial candidate, Supreme Court confirmation hearings are not for the faint of heart – just ask Justice Stephen Breyer.

Breyer, whose nomination by President Clinton was not fiercely opposed, said the experience is still unnerving.

“There are 17 senators on one side of the table, and I’m on the other side. And people are watching me on television, and I’m not used to that,” Breyer said in an interview with TheAtlantic.com.

Breyer also spoke of retiring Justice David Souter, noting that during the 15 years they were bench mates, they were often confused for one another. “I don’t know [why] – maybe because we are both from New England.”

He also acknowledged that the Court splits 5-4 more often now than it used to – and more often than he wishes it did. “It was not so high if you go back three or four years,” he said of the number of 5-4 opinions, “and I would prefer it was not so high.”

See video of the whole TheAtlantic.com interview here.

Monday status conference: Souter’s last stand

Today the U.S. Supreme Court meets for the last time this term, making it Justice David Souter’s last day at the office. Among the items on today’s agenda is the release of the decision stemming from a ruling joined by the judge nominated to replace him, 2nd Circuit Judge Sonia Sotomayor.

That opinion in Ricci v. DeStefano, which considers whether the decision by New Haven city officials to throw out results of a civil service test for firefighters to prevent minorities from being denied promotions was in itself discriminatory. Ricci is one of three remaining cases to be decided by the Court today.


Supreme confrontation:  The Supreme Court ruling requiring criminal lab report analysts to be available at trial for cross-examination was hailed by defense attorneys who say it will help protect against wrongful convictions. But prosecutors say that the decision in Melendez-Diaz v. Massachusetts will tax their already strapped resources. (Lawyers USA)

GM liability compromise: After a host of campaigns my consumer advocates and trial attorney groups who said the bankruptcies of U.S. automakers would leave car owners without legal recourse for product failures, General Motors has agreed to take on responsibility for future product liability claims. Other claims would still be processed through bankruptcy proceedings.  (Lawyers USA)

Will Court take up Sotomayor’s Second Amendment case? Several petitions for certiorari have been filed challenging a 2nd Circuit ruling, joined by Sotomayor, that the right to keep nunchucks was not protected by the Second Amendment. (SCOTUSblog)

GOP leaders ask for more time on Sotomayor: After more than 300 boxes of documents related to Sotomayor’s nomination landed in his office in recent days, Senate Republican leader Mitch McConnell said lawmakers need more time to vet the candidate. Sotomayor’s confirmation hearings are set to begin in two weeks. (AP)