The legacy of retiring U.S. Supreme Court Justice David Souter can be discovered, not only in his 140 majority opinions over 18 years, but at law schools, law firms and public service workplaces across the nation.
That is where Souter's 72 former law clerks, a "notoriously loyal tribe" in the words of one, have fanned out after their intense and deeply affecting year with the justice who announced his retirement plans on May 1. Some have taken up liberal causes, while others are making their mark in government service or corporate law. Most were planning to gather at the Court May 9 for their annual reunion with Souter, an event sure to be more emotional than in the past. Extra port had been ordered for the evening.
The clerks' deep bond with Souter, and their sense that they are carrying on his work and values in their careers, will lengthen Souter's shadow of influence and deepen his legacy, said Harvey Rishikof, law professor at the National War College and former administrative assistant to Chief Justice William Rehnquist.
"The way a justice lives on is in his clerk family," said Rishikof, co-author of a forthcoming Vanderbilt Law Review article that explores the "enormous influence" a justice's clerks exert on the legal profession and the law after they leave the high court. Each justice has a different "clerk footprint," Rishikof said, describing Souter's as "tending more toward the academy" than other justices', whose clerks mostly head into private practice.
Indeed, half of the Souter clerks whose current status can be determined teach law, which Rishikof's paper suggests is higher than any other current justice. Fewer than 20 percent of conservative justices' clerks have become law professors, according to Rishikof.
Three Souter clerks teach at the University of Michigan Law School and two each at Harvard, Columbia, Duke, Berkeley, George Washington, New York University, Fordham and Boston College. "I've heard tell that the justice himself has remarked that he's become a 'feeder judge' for our faculty," said Michigan Law Dean Evan Caminker.
At Yale Law School, Heather Gerken, who clerked for Souter 13 years ago, confessed that, "When I write, I still am writing for Justice Souter."
Six other Souter clerks have landed at Wilmer Cutler Pickering Hale and Dorr. There, former solicitor general Seth Waxman called them a "remarkable group" that mirrors Souter's legal acumen and humanity. "You could not ask for a more flattering reflection than these lawyers," Waxman said. "The force of his persona wore off on them."
Max Stier, a Souter law clerk who now heads the Partnership for Public Service, said "Justice Souter was obviously an amazing role model for public service." Stier's organization urges quality candidates to seek public service jobs in the federal government.
SOUTER'S FOOTPRINT
At first blush, the academic bent of Souter's clerks may seem surprising. Unlike justices Antonin Scalia, Anthony Kennedy, Ruth Bader Ginsburg and Stephen Breyer, Souter's resume did not include the job of law professor before he joined the Court in 1990. "He was a common law judge, which you would think is the opposite of an academic," said Yale's Gerken. "But he is just such a thoughtful person, who takes each question on its own terms, and that is what academics are supposed to do."
University of Pennsylvania Law School professor Kermit Roosevelt, who clerked for Souter a decade ago, added: "Mostly he hired people with a predisposition to be reflective and contemplative."
Once hired, Roosevelt said, clerks learned from Souter "to accept the legitimacy of opposing viewpoints -- not to assume that someone who opposes you is dishonest or wilfully blind to the truth." That's a "very valuable quality" for law professors, he added. Nonetheless, Souter did not advise Roosevelt to go directly into academia after his clerkship. "He thought I should go into private practice for awhile to get real-world experience," said Roosevelt, who worked at Mayer Brown for two years before heading to Penn.
Many Souter clerks have remained in private practice, handling complex litigation as well as pro bono work. And Souter was just as proud of them as he was of the academics and public servants. "He conveys two things about the practice of law: that it is a craft and that it's an honorable profession," said Gerken, who also worked in private practice before teaching at Harvard, then Yale.
"His influence on our trajectory was not so much him telling us what to do, but setting an example of how to do it," said Wilmer counsel Catherine Carroll, a 2005 Souter clerk, citing the justice's "sense of due diligence ... civility and professionalism."
Meir Feder, one of Souter's first clerks, is a partner in Jones Day's New York office. The Souter takeaway that Feder has internalized is "how hard he worked to get every case right." Feder added, "When he looked at a case, the prior law dictated the reasoning forward from the precedents, not backward from what he felt was the appropriate result."
In Souter's chambers, as with some others, the current clerks help the justice screen and hire the next year's clerks. "He didn't really care about political orientation," Roosevelt said, recalling when he vetted future clerks for Souter. "But he didn't want ideologues of any sort."
Still, Roosevelt acknowledged, Souter clerks "probably skewed liberal" or at least Democratic.
Peter Rubin, a 1993 Souter clerk who is now an appeals judge in Massachusetts, founded the American Constitution Society, a liberal counterpart to the Federalist Society, in 2001. William Hohengarten, who clerked for Souter in 1997, was a key member of the Jenner & Block team that won a breakthrough gay rights victory in the 2003 case Lawrence v. Texas. Julius Genachowski, a 1993 Souter clerk, goes before a Senate committee on May 12 for confirmation hearings as President Barack Obama's pick to head the Federal Communications Commission.
Not all Souter clerks were liberals. John Sullivan, now at Gibson, Dunn & Crutcher, is a Republican who served as deputy secretary of commerce under President George W. Bush, inspired in part by Souter's long career in government service. In 2008, when Sullivan asked Souter to swear him in, the justice asked whether doing so might harm Sullivan's reputation, given Republicans' low esteem for Souter. "He was so self-effacing," said Sullivan. Souter did the honors.
KEEPING MUM
Another common characteristic among Souter clerks is their strongly protective instincts toward Souter. Souter's clerks, more than those of other members of the Court, generally refuse to talk to the media about their justice. Several clerks declined to comment for this story, at least until May 6 when Souter let it be known that it was up to the clerks whether to be interviewed. Many still decided to keep mum.
"He never asked us not to talk to the media after our clerkship," said Roosevelt. "But he values his privacy, and because his clerks feel so warmly toward him, we don't want to do anything to upset that."
Saturday's clerk reunion was likely to cement that solidarity. Attendance is almost always close to 100 percent at the annual event. There is usually a skit, put on by the previous year's clerks, which one clerk said can be "funny, awkward or painful." Then there are extemporaneous remarks by the justice, and then the port wine comes out. The reunion can last well into the night.
At this reunion, there will have been another piece of business to discuss. By tradition, law clerks chip in to commission a justice's portrait to hang in the Court building after retirement. Some justices sit for the portrait before they retire, but not Souter.
Feder said he discussed with Souter the idea of getting his portrait done about 10 years ago. "Unsurprisingly, he brushed it off," Feder recalled. "He's the kind of guy who would come up with any excuse not to have his portrait done."
