Justice David
Souter retired from the U.S. Supreme Court in 2009, but has not stopped being a
judge.
In January,
Souter heard fifteen arguments at the U.S. Court of Appeals for the First Circuit
and eight more in February. As a retired associate justice, he has participated
in approximately 170 First Circuit opinions, writing nearly fifty, far
surpassing his previous experience as a court of appeals judge.
The First
Circuit “is extremely grateful to Justice Souter for his invaluable
contribution to the [court’s] work,” said Susan Goldberg, Deputy Circuit
Executive, in response to an email inquiry for this article.
Even fully
staffed, the First Circuit has only six active judges, the fewest of any
circuit. One of those seats has been vacant since the end of 2011, when Judge
Kermit Lipez took senior status. President Barack Obama nominated William
Kayatta to the position in January 2012 and re-nominated him in January 2013.
Kayatta was finally confirmed this month.
After serving
on the bench for twelve years in New Hampshire, Souter’s home state, he sat on
the First Circuit for just a few months, beginning in April 1990. He was
nominated to the Supreme Court in July and confirmed in October. On that
timetable, he heard argument, but authored no opinions.
Post-retirement,
Souter’s numerous authored opinions for the First Circuit cover, among other
topics, business, immigration, education, and employment.
In 2012,
Souter was part of a unanimous decision in United States
v. Kearney, written by Chief Judge Sandra Lynch. Kearney, which upheld restitution for a child pornography victim
and identified a circuit split on the issue, is currently before the Supreme
Court on a petition for certiorari. Another retired federal judge, Paul
Cassell, filed a pending petition on behalf of victims in related
litigation out of the Ninth Circuit.
One of the First
Circuit appeals Souter heard recently involves a request to disqualify the
district court judge in the case of accused mobster James “Whitey” Bulger. On
the FBI’s Ten Most Wanted Fugitives list, Bulger eluded authorities for sixteen
years before being captured in 2011.
At argument, Bulger’s
attorney asserted that the federal government had given his client immunity,
but declined to say when, despite the panel’s interest in the question. The
district judge had been a federal prosecutor, so the date could be relevant to
his alleged knowledge of the Bulger case.
Souter
pressed the attorney twice, noting that his brief implied a particular time
period. The attorney eventually confirmed Souter’s reading and offered, “You’re
the first person to get that out of me.”
So, why would
Souter retire from the nation’s highest court only to be so involved at another
court?
As the other justices
expressed in a farewell letter read from the bench by Chief Justice John Roberts
on Souter’s last day: “We understand your desire to trade white marble for
White Mountains, and return to your land ‘of easy wind and downy flake,’”
references to a region in New Hampshire and the words of Robert Frost from his
1923 anthology, New Hampshire.
Put less
poetically, the Associated Press quoted Souter as telling acquaintances that
his was “the world’s best job in the world’s worst city.”
Solution:
Keep judging at a high level, but from a different location.
First Circuit
arguments are generally held in Massachusetts, an hour-and-a-half drive from
the justice’s New Hampshire home. The court hears cases from those two states,
as well as Rhode Island, Maine, and Puerto Rico.
In his
resignation letter, Souter told President Obama: “I mean to continue to render
substantial judicial service as an Associate Justice.”
By all accounts,
he has succeeded.
