To many Americans, David Souter reflects the perfect image of a judge: ascetic, bookish, removed from explicitly political tumult, a wearer of three-piece suits. Many of those who have read and thought about his body of work on the Supreme Court reach the same conclusion, but based on deeper criteria. Justice Souter really is a judge, in the deepest Anglo-American sense of the word - that is, a judge in the common law tradition.

This is perhaps best illustrated by his most important personal statement on the Due Process Clause, his concurrence in the 1997 "right to die" case, Washington v. Glucksberg. As a case implicating the substantive, but unenumerated, rights that clause guarantees, Glucksberg presents the type of issue that is most susceptible to a common law approach. Justice Souter's opinion reflects perhaps the finest application of that approach in any opinion issued by a justice in the modern era.

In Glucksberg Justice Souter agreed with the rest of the court in rejecting the claim that terminally ill patients had a constitutional right to a physician's assistance in ending their lives. However, unlike Chief Justice Rehnquist's approach for the majority of the court, which painted in bold strokes both the plaintiffs' claim and the legal doctrine rejecting it, Justice Souter's approach was a classic common law-type opinion. First, it was precise: he laid out the claims in a painstakingly careful way. Additionally, and again in contrast to the majority, he carefully parsed the legal tradition criminalizing suicide and suicide assisting, and the constitutional implications of the gradual abandonment of the legal prohibition on suicide itself.

Second, Justice Souter was enormously respectful of precedent. When construing the vague and potentially elastic a concept of substantive due process, Justice Souter did not begin with first principles or even with a caution about the risks of broad judicial construction of rights not specifically mentioned in the Constitution. Those risks are real. However, rather than simply beginning the analysis there, as if it were the first time an American court had ever faced the question, Justice Souter's analysis opened with a lengthy discussion of the history of American courts finding substantive rights in "due process" clauses or their earlier analogues. This is a crucial move: for Justice Souter, the fact that courts have been finding these rights throughout American history justified the practice. For Justice Souter, as for any common law judge, precedent - not pure theory - is the primary justification for a doctrine that is not explicitly commanded by a legal text.
At the same time, that history also provided lessons for modern substantive due process review. For Justice Souter, the main flaw of earlier, unhappy experiments in substantive due process was the absolutism of the court's protection for the right at issue - the property rights of a slaveholder in his slave in the infamous Dred Scott case, and the "right to contract" in the equally famous Lochner v. New York case that struck down a maximum working hours law for bakers. From those cases he drew the lesson that courts should not strike down legislation as violating substantive due process unless the legislature's balancing of individual rights and the public good was beyond the realm of reasonableness, rather than, in the court's view, simply mistaken. Of course, this deferential review of the legislature's balancing still requires the reviewing court to engage in balancing, simply to check its result against Justice Souter's "reasonableness" standard.

Relying on precedent rather than first principles, identifying competing interests with precision, balancing interests rather than absolutely privileging unenumerated rights: all of these are, to varying degrees, reflections of common law adjudication. But Justice Souter is a judge on a court that is the final arbiter of constitutional issues. That role requires integrating the approach described above with one suitable for constitutional adjudication. In particular, it requires acknowledging both constitutional first principles and the larger governmental structure of which the Supreme Court is a crucial, but only one, component.

The special - but limited - role of courts in this structure finds reflection in Justice Souter's reasonableness approach to due process review, described above. In addition, it has led Justice Souter to stake out a combination of positions sometimes unique on the court. Thus, he has consistently argued for deference to congressional assertions of power in areas such as the Commerce Clause and enforcement of the Fourteenth Amendment. Additionally, and surprisingly to those who see in Justice Souter simply a results-driven member of the court's liberal wing, he wrote an opinion upholding the constitutionality of a highly criticized police decision to arrest a female motorist simply because she had not buckled her own or her child's safety belt. At the same time he has insisted on strict standards in the First Amendment area, perhaps most notably in Virginia v. Black, where he voted to strike down Virginia's cross-burning statute, even as Justice Scalia, the author of the earlier case dealing with a cross burning, essentially abandoned his earlier position and voted to uphold the statute.

Of course it's hazardous to examine a judge's record in a few scattered cases and identify a theme. Nevertheless, even this cursory description of these cases gives a clue to a basic insight about Justice Souter's constitutional jurisprudence: government officials should be given a wide berth when acting in areas of their competence and authority, but not when they can be expected to act in ways damaging to the rights of an unpopular minority. Thus, Justice Souter recognizes that Congress is both charged with regulating interstate commerce and enforcing the Fourteenth Amendment, and is in the best position to know when such authority requires particular legislation, regardless of how unusual or innovative it might be. Similarly, Justice Souter's opinion upholding the motorist's arrest relied in large part on the difficulty police would face in making the kinds of split-second, subjective judgments the dissent would have required them to make before deciding whether the infraction at issue warranted an arrest rather than a citation. By contrast, as Justice Souter put it in a 1996 case, "reviewing speech regulations under fairly strict categorical rules keeps the starch in the standards for those moments when the daily politics cries loudest for limiting what may be said." Strict categorical rules may be anathema to a common law judge, and in tension with broad deference to a coordinate branch of government: however, they are exactly what is called for in certain contexts, most notably when "the daily politics cries loudest for limiting what may be said."

Thus, in addition to the characteristics visible in Justice Souter's Glucksberg opinion one can add sensitivity to institutional roles, authority and capabilities. The sort of nuanced distinctions Justice Souter has drawn in reaching these conclusions suggest, at least in spirit, the same precise, incremental, balancing approach that marked his opinion in Glucksberg. The issues - congressional authority, the limits of police capability to follow intricate Fourth Amendment-based requirements, and the importance of strict First Amendment standards - are worlds away from those normally facing a common law judge. But Justice Souter's approach to them reflects the same spirit of careful factual inquiry, respect for legal authority and deep understanding of the real world that mark the best instances of common law judging.