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Bar News - October 7, 2005


Justice Souter Remembers Justice Kenison: “He knew how to tend the store.”


Remarks of Associate Justice David Souter at the dedication of the portrait of Chief Justice Frank Rowe Kenison, Sept. 16, 2005.  The following was transcribed from a tape recording and is not an official text.

 

Mrs. Kenison, Governor Lynch, Governor Peterson, Chief Justice Broderick and my fellow judges and lawyers and New Hampshirites. I remember that other afternoon when a good many of us here today, or at least a fair number of us here today, were here together on September 16, 1970, when Governor Peterson handed the keys to the courthouse over to the judicial branch.

 

I was an assistant attorney general then, and I sat quite unofficially – actually, over on this side of the lawn. For me, if you can see the upshot of the past 35 years, [it was] a reserved seat. I remember the details of that earlier occasion to a degree that surprises me, although I am beginning to realize that the past comes to seem clearer than the present as you get older. To test myself, I compared my recollection with the record of the 1970 proceedings that was published in the NH Bar Journal [Issue date?], and if any of you other old-timers here did the same, you may have noticed that the Journal left something out.

 

Justice Warren and the Siren

 

As you all know, the speaker that afternoon was Earl Warren who was newly retired as Chief Justice of the United States at that point. He had airline trouble getting here that day, and a NH State Police cruiser brought him up from Boston after his long-delayed plane finally made it in. The ceremony had actually already begun when the car with the Chief Justice got here. And the trooper parked it over in the circle between the front of the building and the platform. After a few minutes, Warren rose to speak but he had hardly gotten a few words out of his mouth when all of a sudden the siren on the police cruiser went off. And with the front of the courthouse as a sounding board, it was absolutely perfect. A couple of troopers jumped up and they got the hood of the car open and they just started yanking at every wire they could get their hands on, and the thing kept on going, and finally they ran out of wires and they pulled out the right one, and it was quiet again. Chief Justice Warren smiled, and he said that he understood that the police had not agreed with all of his decisions. I think he added that he was retired, and the troopers did not have to worry about what he was going to say next.  Since I am not in a position to give the same assurance this afternoon, I am grateful for the silence … and I would like to spend a few minutes taking up where we left off in 1970.

 

Earl Warren went on that afternoon to describe the overloaded American judicial system of that time, which he described as being forced to operate in a world that he called very much askew. One answer to his concern over the administration of justice was the new building that he was here to dedicate. And he looked at the then-new courthouse as something almost sacramental, a sort of outward and visible sign of the will of the people of New Hampshire to see that the work of the judiciary would be done better and in a better place.

 

The Rule of Law

 

Governor Peterson spoke after the Chief Justice and he addressed something more fundamental when he said that the rule of law was being tested as never before. The Governor did not go into a definition of the rule of law, but we all knew what he was getting at. Not a code of official conduct, but a collection of attitudes and principles and institutions that have accumulated in the Anglo-American mind and social fabric, occasion by occasion, century after century. The rule of law exalts lawmaking over individual will, and it abhors the arbitrary action that thwarts the reliability of the legal process. The rule of law balks at free passes for power and the powerful, and the rule of law tends to get in the way by demanding facts amounting to an adequate excuse when someone is getting hurt by a government claiming that corners have to be cut. It understands that the guarantee of law loses all its bite when legislatures and executives and judges give short shrift to the facts of the world around them. The rule of law, dependent on a willingness to face the truth, needs a lot more than a building to make it survive. But back in that earlier September, here in New Hampshire anyway, it was in pretty good shape. Governor Peterson suggested why that was so, and I want to elaborate a little bit on what he said.

 

The rule of law needs people willing to demand the rule of law. And it needs human voices to speak for people who are ready to stand up and insist that in public life there be a respect for truth to fact. It needs those voices and the faces of those people all through society, but it needs them on the bench especially. And the faces and the voices of that first court decision in that new courthouse carried a good deal of assurance. That was the court of Robert Griffith, William Grimes, Edward Lampron, Lawrence Duncan, and Frank Kenison. This afternoon I want to think for a few minutes in particular about those last two — a couple of old friends who were the giant center of gravity of that 1970 court.

 

Kenison and Duncan: Two Remarkable Men

 

As history measures time, the two of them had come to the bench together, right after World War II and they would be colleagues here for 30 years. Each had a particular strength that supported the rule of law, and the strength of each one of them jibed with the strength of the other to the point that, in their time, the Supreme Court of New Hampshire became one of the premier common law courts of the nation. They were the court’s longest tenured members 35 years ago. And they ranked among the finest judges any of us can hope to know.

 

I first saw them together in the 1960’s when they kept chambers in the western section of the state library building, where the court was then. Young lawyers like me who were doing research in the library upstairs would see one or the other of them emerge from what seemed like shadows underneath the tower that Governor King later dismantled. If we looked up we would get a nod from them; they were not back-slappers. I guess that Duncan was on the shy side, but they were approachable and sometimes they would even do the approaching. They formed a hierarchy that was a very relaxed one. And we were just comfortable being around them.

 

I had come to admire Lawrence Duncan earlier, when I did a law school paper on the litigation that grew out of the state’s investigation into communist subversion in the 1950s. In the most famous case of that period, the one involving Willard Uphaus.  Justice Duncan dissented from the judgment when the court sustained the state’s demand for Uphaus to turn over the names of guests who had frequented a distinctly left-wing meeting place he maintained. The dissent was an act of courage in those charged-up days, and the way the Justice went about his dissenting really bespoke the man. Even in his disagreement he helped the majority revise and strengthen their own opinions so that the court would put its best foot forward —the best forward that it could, even if it was pointed, in his mind, in the wrong direction. As for his own opinion, that dissent really defined Lawrence Duncan’s distinction as a judge. He had looked at the record, and he simply believed that a necessity for governmental intrusion did not show up there. And in Uphaus as in every case he ever sat on, he earned his nickname: the gimlet:” He had an eye that bore right to the heart of the facts that made that case distinctly what it was. He was an extraordinarily acute legal analyst and he insisted that his court decide the case, and only the case that the specific record disclosed. He was a judge who stood with his feet very firmly on the ground; judging by agenda would have been anathema to him.  I don’t believe the common law had a finer master then Justice Duncan.

 

Frank Kenison and Conflict-Resolution

 

His friend and Chief Justice was the more public of the two; Frank Kenison balanced reserve with geniality and his habit of walking around with a pipe going seemed to be sort of a guarantee against rushing into anything. It was a guarantee against rushing, not against changing, and in the civil law, legal development came to be identified with the Kenison name.

 

If Lawrence Duncan knew how to get right to the facts that defined the case before him, Frank Kenison had a nose for finding the empty places where time had worn away the factual predicate for some old rule, until nothing was left but an old rule of law, out of place in the world around it. Those anachronisms got Frank Kenison’s attention as he read the academic back and forth, and the law journals. He had the intellectual capacity and he had the intellectual self-confidence to recognize and to adopt the better scholarship. And over time, the rules of tort law, principles for resolving conflicts of law, investing requirements in property law, for examples, all grew into creatures of the 20th century through his opinions. And he was a force for common law vigor all over the country through his teaching every summer at the Appellate Judges’ Seminar.

 

He also knew how to tend the store, and as you have already heard, he nudged the legislature toward administrative reform, like providing the court with law clerks, (Judge DeClerico was the pioneer.); giving the chief justice an administrative assistant, and taking the first steps toward a unified judicial system.  [Inaudible] spoke of Kenison’s willingness to think about tomorrow’s cases. And [inaudible], it may have been James Russell Lowell’s line, “New occasions teach new duties.” He was customarily mentioned in the same breath as chief justices Vanderbilt of New Jersey, Schaefer of Illinois, Traynor of California. And Governor Peterson spoke for all of us when he said here in 1970 that the state was proud of Frank Kenison.

 

An Extraordinary Partnership

 

Recalling those two judges today is an excursion into the unlikely. A superb analyst and master at deciding cases from the factual ground up was teamed with a leader who insisted that the law address the reality of his day. It was simply not to be expected that a state with less then a million people could choose, and actually did choose, two judges of such extraordinary capacities to serve on one court, at one time. But the state did exactly that, and the improbable partnership of Lawrence Duncan and Frank Kenison is still worth calling to mind this afternoon as we sit here with the not very comforting hindsight of the past 35 years.

 

Maybe the way to get at the value of those two judges in this year 2005 is to call it a matter of our ancestry. You and I wouldn’t be together here today if we did not share some felt obligation to carry on the old tradition of civic self-control in this bewildering time. And whether we are here as citizens, lawyers, or judges, Justice Duncan and Chief Justice Kenison were the people from whom we come. They are the judges with the principal strengths of the common law tradition of which the rule of law grew over time. True to that tradition, they were skeptical of generalities untied to facts that might or might not justify the application of some general rule. They respected facts knowing that disrespect for facts would be the death of law. They demanded facts from others, and faced facts themselves, and weren’t afraid to act on the facts they saw. The rule of law was at home in their court, and we were proud of them. Now that the rule of law is our business, they are like good ancestors who help us know who we are, and point to what we have to be.

 

On rough days we’re entitled to take heart from the memory of them as a kind of inheritance that we have received. And we will do well to draw on that inheritance of memory for all it’s worth, for those two great judges are the ones to measure up to.

 

Bar News thanks Ann Saunders of the Associated Press who provided the tape recording of Justice Souter’s speech.

 

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