The intellectual empathy of David Souter

This article is part of a series on the legacy and jurisprudence of the late Justice David Souter.

Kent Greenfield is Professor of Law and Dean’s Distinguished Scholar at Boston College. He clerked for Justice Souter during the 1994 Term.

Most of the many lovely tributes penned lately by those who had the good fortune to know David Souter have mentioned his ability to see people around him as genuine human beings worthy of attention. Around the Supreme Court, he afforded respect not only to his colleagues but also to the folks in the lunch room, the messengers, the janitorial staff, and the court police officers. 

This attention to the details of other humans and to human situations also informed and strengthened Souter’s jurisprudence. 

Even at its most nuanced, the law will never capture the complexity of human beings. In hearing actual cases, judges are called to listen to stories. A judge’s ability to imagine and appreciate the situation of someone from a different background or in a different situation is essential. One might call this “intellectual empathy.” It is not a feeling but a method of thought, a habit of questioning one’s perspective long enough to check one’s work. Intellectual empathy is the only way that the stories the law requires will produce fair outcomes. Without empathy, stories can lead to outcomes that are mere receptacles of the bias and preconceived notions of judges and juries.

David Souter embodied this kind of empathy.  He was a Harvard- and Oxford-educated New England Republican, but his contributions were often in the understanding of people completely unlike him. His opinions in two little-known cases exemplify this. 

Early in his career as a justice, the court heard a case about a down-on-his-luck Black man named Curtis Kyles, who had been on death row in Louisiana for almost a decade. (I was the clerk assigned to the case in chambers.) Kyles had been convicted of the murder of a white woman in a supermarket parking lot, for groceries and her red Ford LTD. The evidence against him looked strong. His appearance matched some eyewitness accounts, and he had been found with a revolver, which turned out to be the murder weapon, hidden in his apartment. A man named Beanie also claimed that Kyles had sold him the victim’s car the day after the murder. 

Kyles was as different from Souter as any party to a Supreme Court case I know about.  Notwithstanding that fact, and despite Souter’s own experience as a state prosecutor, Souter pored over the record in the case, which increasingly gave him the impression that something was not right. The evidence against Kyles was not nearly as strong as the police had made it out to be, mostly because they had failed to give Kyles’ lawyers some eyewitness descriptions that did not match Kyles. The police had also failed to disclose their chummy relationship with Beanie, who should also have been a suspect since he matched some eyewitness descriptions and had a history of criminal activity around the grocery store in question. 

Souter’s attention to detail, and his openness to seeing the facts from vantage points distinct from the accepted official version, allowed him to understand that the evidence did not point unequivocally to Kyles. Beanie should have been a suspect too. But the police took what Souter said was “a remarkably uncritical attitude” toward him, perhaps because of his history as an informant. 

Souter wrote a detailed and tightly argued opinion arguing that Kyles deserved a new trial, not because he believed Kyles was innocent but because the police had hidden evidence that might have created a reasonable doubt as to his guilt. (His opinion was thorough and persuasive in spite of the clerk who helped him. I had done an embarrassingly poor job on the first draft.) Souter’s opinion received four other votes, meaning that Kyles won a new trial and avoided the death penalty by a single vote. It was the first time Kyles had won any of his cases or appeals in a decade of state and federal court proceedings. 

Souter might have taken the case lightly or not thought to challenge the arguments of the state officials, with whom he might have identified. His contribution was not that he felt a certain way, but that he thought differently from what his background might have suggested. This kind of empathy did not lead him astray but helped him see the facts in a way that no other court had seen them. It also meant that the court could articulate an important rule of constitutional law: that prosecutors cannot 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 was stopped in the middle of the night, far from its destination. Police boarded and stood at the rear and the front. An armed officer walked up and down the aisle, approached two seated passengers, and asked them to open their luggage. The officer stood over them, blocking their exit, and did not say they had a right to refuse. The passengers “agreed” to have the police look in their bags, and a significant amount of cocaine was discovered.  The Supreme Court majority held that this was a consensual search, since the passengers had a choice – they could have gotten off the bus.  

There was no reason for Justice Souter to sympathize with a couple of drug dealers who were carrying kilos of cocaine in their carry-on bags. But his dissent made the important intellectual point that the consent forming the basis of the search was manufactured rather than genuine. In analytic but powerful prose, he described the power of police in situations that we can reasonably assume he had never faced:  “[W]hen the attention of several officers is brought to bear on one civilian the balance of immediate power is unmistakable.  We all understand … that a display of power rising to … [a] 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 rarely decide any case, much less a difficult one, by performing the judicial equivalent of calling balls and strikes. Good judging requires giving the parties the opportunity to tell their stories and relies on judges and juries being intellectually empathetic enough to be able to imagine themselves in the situation described, in the role of either or both of the parties. Only then can the correct legal outcome be decided.

The kind of empathy David Souter practiced is important even for those of us who will never be judges. In our roles as spouse, parent, friend, or colleague, we would do well to listen to others’ stories, pay attention to particularities, and practice intellectual empathy.