David Souter: A man of intellectual empathy
He clerked for Justice Souter during the 1994 Term. He clerked under Justice Souter in the 1994 term. He showed respect to everyone at the Supreme Court. This included his colleagues, but also the people in the lunchroom, the messengers and the janitorial workers, as well as the court police officers.
Souter’s jurisprudence was strengthened by his attention to human details and situations. Even at its most nuanced level, the law cannot capture the complexity of humans. Judges are asked to listen to stories when they hear actual cases. It is important for a judge to be able to imagine and understand the situation of a person from a different background. This is what one might call “intellectual sympathy.” It’s not a feeling, but a way of thinking. It’s a habit to question one’s own perspective for long enough to double-check one’s work. Intellectual empathy is necessary for the stories that are required by law to produce fair results. Stories can be distorted by the prejudice and preconceived notions that judges and juries have without empathy. He was a Harvard and Oxford-educated New England Republican. But his contributions were often based on understanding people who were completely different from him. This is evident in his opinions on two little-known legal cases.
Early on in his career, the court heard about a Black man named Curtis Kyles who was on death row in Louisiana. (I was the clerk assigned the case in chambers. Kyles was convicted of the murder a white woman on a supermarket parking lot for groceries and her red Ford LTD. The evidence against him was strong. His appearance matched eyewitness reports, and he was found with a revolver in his apartment, which turned out be the murder weapon. A man named Beanie claimed that Kyles sold him the victim’s car the day following the murder.
Kyles and Souter were as different as I’ve ever seen any parties to a Supreme Court Case. Souter, despite his own experience as a prosecutor in a state, sifted through the records of the case and became increasingly convinced that something was wrong. The police did not provide Kyles’ attorneys with eyewitness descriptions which did not match Kyles. The police also failed to disclose that they had a friendly relationship with Beanie who, based on his matching some eyewitness description and a criminal history around the grocery store where the crime took place, should have also been a suspect.
Souter was able to see the facts in a different light than the official version because of his attention to detail and willingness to look at the facts from other perspectives. Beanie was also a suspect. Souter claimed that the police had a “remarkably uncritical” attitude towards him, possibly because of his past as an informant.
Souter argued in a well-written and argued opinion that Kyles deserved to have a new trial. Not because he thought Kyles was innocent, but because the police had concealed evidence that could have created a reasonable suspicion of his guilt. (His opinion, despite the clerk who assisted him, was thorough and convincing. I had made a terrible first draft. Souter’s opinion was backed by four other votes. Kyles avoided the death sentence and won a new trial with just one vote. Kyles’ first victory in state or federal court proceedings was a win on appeal.
Souter may have taken the case too lightly or not challenged the arguments of state officials with whom he could have identified. His contribution was not to feel a certain way but to think differently than his background might suggest. This empathy did not lead him wrong, but it helped him see things in a new way. It also allowed the court to articulate a crucial rule of constitutional law, that prosecutors can’t hide evidence. Without such empathy, Kyles would have been put to death for a murder he probably did not commit, and it would be easier for any of us to be falsely accused.
Another example of Souter’s empathy came a few years later in a search and seizure case called United States v. Drayton. A bus stopped in the middle night, far away from its destination. Police stood in the back and front of the bus. Unarmed officer approached two passengers seated in the middle of the aisle and asked them to remove their luggage. The officer stood in front of them, blocking their way out, and didn’t say that they had the right to refuse. The passengers “agreed”, to let the police search their bags. A significant amount of cocaine, was found. The Supreme Court majority ruled that the search was consensual because the passengers had the option to get off the bus. Justice Souter had no reason to sympathize for a couple of drug traffickers who were carrying kilos worth of cocaine in their carry on bags. His dissent raised the important intellectual point, that the consent used to justify the search was not genuine. In a powerful, analytic prose he described police power in situations we can assume he has never experienced: “
When the attention of several police officers is brought to bear upon one civilian, the balance of power is unmistakable.” We all understand … that a display of power rising to …
threatening level may overbear a normal person’s ability to act freely, even in the absence of explicit commands or the formalities of detention.”
For Souter, taking a different point of view was not an emotional exercise but an intellectual one.
Judges seldom decide a case, let alone a difficult one, using the judicial equivalent to calling balls and strikes. Good judging relies on giving parties the chance to tell their stories, and relies upon judges and juries having enough intellectual empathy to be able imagine themselves in a situation described in either or both parties’ shoes. Only then can a correct legal outcome be determined.
The type of empathy David Souter demonstrated is important for those of us that will never be judges. We would all do well to pay attention to details, listen to other people’s stories, and show intellectual empathy in our roles as a spouse, parent or friend.
Posted in Featured, Tributes to Justice David Souter[W]Recommended Citation:[a]
Kent Greenfield
David Souter’s intellectual empathy
SCOTUSblog
(May. 28, 2025, 2:19 PM),
