The Nine [136]
A clue to the source of Souter’s revival on the Court came shortly after the death of Gerald Gunther, the Stanford law professor and biographer of Judge Learned Hand. Gunther and Souter were not close friends, but Kathleen Sullivan, the dean at Stanford, knew that the justice admired Gunther’s book, and she decided to invite him to speak at the funeral. (Souter’s secretary thought the idea was so unlikely that she laughed when Sullivan called.) But Souter said yes and made what was, in his seventh decade, the second visit of his life to California.
Souter’s eulogy praised Gunther and Hand, but it really amounted to a short essay about “what anyone’s judging ought to be.” Hand had served from 1924 to 1961 on the federal court of appeals in New York, where his views resembled those of the moderate, careful jurisprudence of his friend John Marshall Harlan II, who was Souter’s other judicial hero. Souter spoke of “every judge’s common obligations: suspicion of easy cases, skepticism about clear-edged categories, modesty in the face of precedent, candor in playing one worthy principle against another, and the nerve to do it in concrete circumstances on an open page.” This was autobiography for David Souter, the cautious guardian of the right to privacy, the fierce advocate of strong national government (and unrelenting foe of Rehnquist on federalism), the painstaking, even slow, judicial craftsman.
His eulogy for Gunther also offered a lesson in why Souter joined O’Connor and Kennedy in moving left after 2000. Souter, who recoiled from extremism or “clear-edged categories” of any kind, had a visceral horror of such conservative undertakings as the Constitution in Exile. While centrism was a political philosophy for O’Connor, it was more a matter of temperament for Souter; still, it turned out the two justices were merely taking different paths to a similar jurisprudential destination.
The case that summed up Souter’s achievement as a justice was one that was argued and decided during Rehnquist’s illness. The issue in MGM v. Grokster concerned one of the most vexed issues in copyright law—whether the maker of software that can be used for copyright infringement should be held liable if its product is in fact used that way. Billions of dollars were at stake in the case because virtually all video and audio entertainment can be illegally copied and distributed on software like Grokster. Would ruling for the software maker condemn movie studios to wanton piracy? Would ruling for the studio stifle technological innovation? Before the case was heard, it was widely predicted that the Court would split in the face of those difficult questions and make the law even more complicated than it already was. But Souter managed to unite the Court behind his opinion, which held that software makers could be liable only if they took affirmative steps to encourage infringement. It was a largely apolitical decision that managed to draw support from left and right, creators of entertainment and distributors of it, artists and entrepreneurs—and it was written by a man who worked exclusively with a fountain pen. Souter’s opinion showed a sophisticated understanding of the markets for both technology and entertainment—from a man who only in 2003, while presiding over a wedding, learned the name of a singing group that was more than familiar to his colleagues, the Supremes.
Still, for all his popularity on the Court, Souter remained a mystery even to those who knew him best. Part of his appeal was