William D. Araiza, Professor of Law, Brooklyn Law School & former Clerk to Justice David Souter (1991-92)
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.