Supreme Court Justice David Souter, a Bush nominee who veered to the left, dies at 85
He was not on the list.
Former Supreme Court Justice David Souter, a Republican
appointee who retired from the high court in 2009 after voting consistently
with its liberal wing, has died, the Supreme Court announced on Friday.
He was 85 years old.
Souter, a low-key New Englander who eschewed the national
spotlight, was known by some as the “stealth nominee” when President George
H.W. Bush nominated him in 1990 to replace the liberal lion William Brennan.
Advisers assured the president that Souter would move the court to the right –
a misreading that continues to reverberate today.
The Supreme Court said Souter died “peacefully” on Thursday
at his home in New Hampshire, but did not disclose the cause.
“Justice David Souter served our court with great
distinction for nearly twenty years,” Chief Justice John Roberts said in a
statement. “He brought uncommon wisdom and kindness to a lifetime of public
service.”
Measured, scholarly and faithful to the idea of judicial
restraint, those who knew Souter said his approach to the law shouldn’t have
surprised anyone who was paying close attention.
“The whole point of it was that it was a Constitution and a
Bill of Rights for the indefinite future,” Souter said during a 2012 event.
“The application of these values, the problem of trying to make them work in
practice, was an assignment that was left to the future.”
Souter appears before the Senate Judiciary Committee during
his confirmation hearing in September 1990 in Washington, DC.
It did not take conservatives long to regret Souter’s
nomination. After less than two years on the bench, he helped orchestrate a
significant opinion that upheld the central tenet of Roe v. Wade, that the
right to abortion was implicitly guaranteed by the Constitution. It wasn’t
until 2022 – three decades later – that the court ultimately overturned Roe.
And he would go on to side with the court’s liberal bloc in
cases dealing with civil rights, affirmative action and voting.
His tenure inspired a rallying cry on the right – “No More
Souters” – and led to a more rigorous ideological vetting of candidates.
Subsequent nominees from both parties – including today’s justices – are less
likely to break with the party that appointed them.
Attorney General Pam Bondi described Souter in a social
media post Friday as a “brilliant man who devoted his life to public service
and our courts.”
Contemplative, humble jurist
Souter wrote a widely cited First Amendment unanimous
opinion in 1995 that permitted organizers of a St. Patrick’s Day parade in
Boston to deny a place for an LGBTQ group. A decade later, he wrote for a 5-4
majority finding that three counties in Kentucky had violated the Frist
Amendment when they displayed framed copies of the Ten Commandments in courthouses
and public schools.
“The divisiveness of religion in current public life is
inescapable,” Souter wrote. “This is no time to deny the prudence of
understanding the establishment clause to require the government to stay
neutral on religious belief, which is reserved for the conscience of the
individual.”
He was often understated in his opinions. In a 2009
concurrence in a case involving Navajo Nation mineral rights, Souter put down
only two sentences.
“I am not through regretting that my position” in an early
case “did not carry the day,” he wrote. “But it did not, and I agree that the
precedent of that case calls for the result reached here.”
In another break with today’s norms, Souter stepped down after
19 years on the Supreme Court, seeking a return to his contemplative life in
New Hampshire. Never married and never fond of the Washington social scene,
Souter was only 69 when he stepped down – far younger than most departing
justices.
His retirement gave President Barack Obama, a Democrat, his
first chance to name a Supreme Court justice. Obama chose Sonia Sotomayor, a
self-described “fiery Latina” to fill the shoes of the low-key New England
native Souter. Today, Sotomayor is the senior member of the court’s
three-justice liberal bloc.
Souter, happy to leave the politics and agitation of
Washington behind, spent his retirement in New Hampshire, often sitting on
lower courts to fill a vacancy when necessary. His preference for a quieter
life was evident during his time at the Supreme Court where he spurned
technology and wrote his opinions in longhand. Asked if there would ever be
cameras in the courtroom, he famously said, “over my dead body.”
A stinging defeat for Souter was the 2000 decision Bush v.
Gore that cleared the way for Bush’s presidency.
“He was very aggrieved” by the decision, said Ralph Neas,
the founder for People for the American Way. “He believed it was the ultimate
politicization of the Supreme Court.”
‘Not only liberty, but equality’
David Hackett Souter was born in Massachusetts in 1939 but
he grew up and attended grade school in New Hampshire. His father was a banker
and his mother was a store clerk. He spent the summers as a child in his
grandparents’ house in New Hampshire, and attended Harvard, Oxford and Harvard
Law School.
In 1976, Souter became New Hampshire’s attorney general,
taking over for Warren Rudman. Rudman, a centrist Republican, would go on to
serve in the US Senate and become one of Souter’s greatest champions.
Despite stiff opposition from the NAACP and the National
Organization for Women, Souter was confirmed 90-9 by the Senate.
Douglas Kmiec, a lawyer who served in the Bush
administration, said that Souter “was tabula rasa” when he showed up on the
bench and called him a “surprise.”
“The law for him, unlike many of his conservative
colleagues, was not an abstract set of rules totally divorced from its effect
in the real world,” said Peter Rubin a former law clerk. “It wasn’t just an
intellectual puzzle for him.”
Some of his habits were idiosyncratic, especially for
Washington. Souter was known to be a charming guest, but he didn’t go out much.
Instead, he preferred solo pursuits like reading and hiking in the New
Hampshire mountains.
In 2016, at a joint appearance discussing the role of food
at the Supreme Court, Justices Ruth Bader Ginsburg and Sotomayor revealed his
unusual lunch habit.
“My dear colleague David Souter,” Ginsburg said, with a hint
of distaste, ate one thing for lunch most days: plain yogurt.
“I understood,” Sotomayor said, “he had an apple.”
Yes, Ginsburg replied.
Sotomayor added: “He ate the core.”
After retiring from the Supreme Court, Souter continued to
occasionally hear cases on the Boston-based 1st US Circuit Court of Appeals. He
also took part in civics education curriculum reform efforts in New Hampshire,
the court said.
In 2010, Souter set out his philosophy during a commencement
speech at Harvard.
“We want not only liberty, but equality as well,” he said.
“These paired desires of ours can clash, and when they
do, a court is forced to choose between them, between one constitutional good
and another one,” he said. “The court has to decide which of our approved
desires has the better claim, right here, right now, and a court has to do more
than read fairly when it makes this kind of choice.”
