Wednesday, February 27, 2013

Justice Souter: Working in Reverse, by Choice

This article first appeared in the February 26, 2013, issue of the National Law Journal’s Supreme Court Brief.

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.