Clerking for Justice Souter: A journey of luck, brilliance, and enduring friendship

Photos courtesy of Mathew S. Rosengart

When law students or young lawyers ask for advice regarding the "keys to success," I cite obvious prerequisites--technical skill, hard work, and passion--but also mention fate and luck. I remind them of Thomas Jefferson's quote, "I am a great believer in luck, and I find that the harder I work the more luck I have." 

My own lucky break came during law school, when soon-to-be U.S. Supreme Court Justice David Souter hired me to serve as one of his two law clerks on the N.H. Supreme Court for the 1987-1988 term. For prospective litigators, and trial lawyers in particular, a judicial clerkship is obviously a coveted job. I was on the verge of accepting a federal clerkship, but after meeting Justice Souter, during our initial interview at Boston College Law School and then in his chambers at the N.H. high court, I knew I was in the presence of someone extraordinary--if not unique. Anyone who knows him, ranging from friends to former clerks to associate Supreme Court Justices would agree. I later came to appreciate just how lucky I had been to clerk for David Souter, let alone to maintain a close, lifelong friendship with him.

Justice Souter's legal brilliance is well-documented and far beyond the scope of this essay. He attended Harvard College, Harvard Law School, and Oxford on a Rhodes Scholarship, before serving as New Hampshire's Attorney General, as a state and federal court judge, and then on the U.S. Supreme Court. I was honored just to have been selected for an interview; I didn't expect an offer.

Many former law clerks profess that their judicial clerkships were probably the best jobs of their lives. That is true for me as well, but clerking for Justice Souter was in many ways unique, both professionally and personally.

Justice Souter was certainly demanding, but he was also unduly generous and kind (he treated everyone with the same courtesy and respect, from his colleagues to the custodians), as a mentor and a teacher. My co-clerk and I came to realize fairly early in the term that given his astounding breadth of historical and legal knowledge, coupled with a near-photographic memory, Justice Souter did not need law clerks. We teased him about this (and still do), but he would have none of it. Instead, he went out of his way to make us feel as though we were playing a far more important role than we actually were. We engaged often, and appreciating my interest in criminal law and my goal of becoming a federal prosecutor, he assigned the criminal cases to me, while my co-clerk wrote the draft civil opinions. Justice Souter would read our draft opinions, provide handwritten notes on them, and return them to us. (I have saved all of them.)  He would then graciously and patiently discuss them with us, before rewriting them, nevertheless always making us feel good (sometimes even great) about our work product, as if we had truly contributed something important to his final opinions even though our drafts were, in fact, usually superfluous.

He taught us the importance of writing clear declarative sentences. This was something upon which he insisted, from the first day of the clerkship when he provided us with copies of Strunk & White's classic guide, The Elements of Style. Justice Souter also taught us about humility, how to think critically about all aspects of a case, from all perspectives. Years later, I learned from him that his judicial philosophy had been informed by Judge Learned Hand's "Spirit of Liberty" speech in which Hand explained his view of what "liberty" meant, emphasizing that "The spirit of liberty is the spirit which is not too sure that it is right."

I will never forget the pride I felt a couple of years after the clerkship while watching my first boss, who by then had become a dear friend, respond to pointed Judiciary Committee questions with wit, grace, and humanity. (Ironically, two of the opinions that came up during his Supreme Court confirmation proceeding were criminal cases, Coppola v. State and State v. Colbath, of which I had prepared early drafts.) Instead of writing and referring to notes on the legal pad in front of him as other prospective jurists have understandably done, Justice Souter remained calm and composed, with nothing but an unopened pack of Certs mints in front of him, never needing to lift his pen.

Commenting on Justice Souter's performance at his Supreme Court confirmation hearing, legal scholar Walter Dellinger called him "the most intellectually impressive nominee I've ever seen." Because he had been appointed by a Republican president, however, he was portrayed as a "right winger" who would vote to reverse Roe v. Wade. But those of us who knew him knew he was far from that. He revered the Court, and he was a proponent of stare decisis and judicial restraint. Consistent with these principles--those of a judicial conservative not a political conservative--two years later, Justice Souter led a plurality coalition that upheld Roe, in Planned Parenthood v. Casey, based upon stare decisis. According to former Scalia clerk and then-Stanford Law Professor Lawrence Lessig, "Whether or not he agreed with the original decision in Roe (and I suspect he did not), he saw that maintaining the perception of independence was critical to the long term viability of a Supreme Court. His fidelity was thus not just to the meaning of the Constitution, but also to the role of a judge, and the institution of the court on which he served."

After his retirement, he was praised not only for his powerful intellect, but for his equanimity and his utter decency and modesty. True to form, he declined most speaking engagements, but he did agree to speak at Harvard's 2010 commencement, where he delivered a masterful speech regarding Supreme Court jurisprudence. The Washington Post's E.J. Dionne called the speech brilliant, exclaiming that it should be "the philosophical shot heard 'round the country'" for the way it "dismantled 'originalism.'" The L.A. Times similarly praised the speech, proclaiming that its "eloquent exposition on the role of the U.S. Supreme Court in American society" should be added to the "short list of great commencement addresses," alongside those delivered by George Marshall, Dwight Eisenhower, and Alexander Solzhenitsyn. He also joined forces with retired Justice Sandra Day O'Connor to promote the importance of civic education in schools, as a bellwether for retaining democracy. Looking back at his tenure and disappointed by his reticence off the bench, Pulitzer Prize winning New York Times writer Linda Greenhouse said Justice Souter had "a great deal of wisdom to offer the country." 

Despite the remarkable professional experience and lessons learned from Justice Souter during the clerkship, the post-clerkship experience is even more indelible. It began in 1988 and runs through today.

Customarily, the term would end with a Justice's clerks taking him to a cordial lunch in Concord. My co-clerk and I decided that would be insufficient. Justice Souter was an avid hiker of his beloved White Mountains in New Hampshire, so we all agreed to hike one of his favorites, Mt. Washington, the Northeast's highest peak. A fitness buff, he beat us up the mountain and would continue to do so year after year, see infra.

The next evening we surprised Justice Souter by picking him up for dinner in a chauffeured limousine. Although it was anathema to his austere Yankee sensibilities (we fondly called him an "ascetic"--he famously eats an apple and plain yogurt every day for lunch--but while he can be frugal, he is also very generous), we took him to Boston for a lavish dinner at his favorite restaurant, the venerable Locke-Ober Cafe, one of the country's grandest restaurants, which opened in 1875 and retained its 19^th-century charm. This was preceded by a stop at the Ritz Carlton, just across the street from Boston's Public Garden, after which we walked at his suggestion across the Boston Common to Beacon Street where we paused in front of the State House to admire Augustus Saint-Gaudens' famous sculpture of Civil War hero Robert Gould Shaw and the 54^th Regiment.

I didn't expect it at the time, but we have carried on this tradition in some form for 30-plus years. Each summer, weather permitting (the White Mountains are notorious for having some of the windiest, worst weather on the planet) and with a few other exceptions including the pandemic, we would convene in Southern New Hampshire and drive North, into the beautiful White Mountains, where we would climb various mountains in the Presidential Range--from Adams to Jefferson to Washington. Sometimes we would tackle hikes easier than the Presidential's 4,000 footers, like Mounts Madison, Moosilauke or Monadnock.   

Justice Souter would select which mountain we might attack any given summer, and while I'll claim "privilege" as to the details of our discussions as we hiked, they would typically include history, politics, literature, poetry--the Justice could and with our prompting would quote verbatim from the great poets (not surprisingly, Frost was a favorite) and answer our questions about them--and law.  He showed his wry sense of humor and was capable of good-natured ribbing.  For example, he signed my end-of-term team photo, which shows my overly-long hair at the time, "For Mat, who didn't let the 1988 barbers' strike interfere with being an all-time ace law clerk. From David." He would also regale and have us in stitches with tales dating back to his days at Harvard or Oxford. He would often ask us how we were coming along on the "Top 10" list of books we should read before the age of 30 that he sent us back in 1988 (each year I have to confess failure in my ability to make it through Proust and each year he encourages me to do so, "in a gulp") and always ask about our jobs and families. But his own stories were more interesting, told with modesty, humor, and often poignancy. A favorite of mine concerned his New England ancestor who refused to issue a warrant against an accused young woman during the Salem witch trials, thereby stopping them from spreading to New Hampshire, by simply stating in typical New England fashion, "We will have none of that here." At times, it felt like we were hiking with a Founding Father.

There have been other innumerable, memorable occasions with Justice Souter over the years. A few include his attending and co-officiating at my wedding in New York (he took the train from Washington and returned that same evening so he could work the next day), followed by a moving toast, which was itself followed by one from my client Sean Penn--who got a kick when I told him the Justice, brilliant though he is, was not a movie buff and was unfamiliar with Sean's work--to offering his congratulations and expressing pride after reading about my work in suspending Britney Spears's father as her conservator, which led  to a legal precedent concerning the right to counsel under California law

But those warm summer days in his beloved "Whites" will always be some of the most memorable times with Justice Souter. Equally memorable are the dinners and the drives to and from Boston for cocktails and dinner. Traditionalist that he is (and that my co-clerk and I became), we would invariably go to Locke-Ober's (until its unfortunate closing several years ago, which forced us to find a suitable steak house as a substitute), after drinks at the Ritz (always a Gin and Tonic) and a walk across the Common to admire Saint-Gauden's Memorial and the gold State House Dome on the way.

It is now more than 35 years since our first hike, and this past July, given the pandemic, the passage of time, and our combined schedules, we had a more moderate reunion over coffee in his chambers at the federal courthouse in New Hampshire. Particularly in these partisan and polemical times, I feel fortunate, indeed, to have spent a year clerking for Justice Souter and to have hiked and dined with him so regularly at our reunions since then. The country, too, is lucky to have had his service.

[Editor's Note:  Justice Souter provided a warm eight-minute personal introduction of Rosengart in September, 2022, praising Mathew's advocacy, skills, and integrity, before the Beverly Hills Bar Association presented him with its Excellence in Advocacy Award.]