Souter’s influence still resonating 16 years after he left the Supreme Court

Justice David Souter, touted as a steadfast conservative for the Supreme Court in 1990, soon revealed himself as the opposite. He valued constitutional privacy, individual equality and the separation of church and state. And in 1992, when the justices confronted a major test of abortion rights, he unflinchingly cast a vote to affirm Roe v. Wade. From the elevated courtroom bench that June 29, 1992, morning, as Souter read his portion of the opinion in Planned Parenthood v. Casey, he emphasized regard for the 1973 precedent and the court’s “promise of constancy.” “Like the character of an individual,” the New Hampshire native said in his distinctive Yankee drawl, “the legitimacy of the court must be earned over time. … The court’s concern for legitimacy is not for the sake of the court but for the sake of the nation to which it is responsible.” When I contacted Souter nearly three decades later, as the court was about to hear a new abortion case (one that would lead to the 2022 reversal of Roe), he asked, “to be excused from voicing recollections of Casey.” In his inimitable manner, he added, “I still think that on a judge’s past decisions his silence is the best course.” Souter, whose Thursday death was announced by the Supreme Court on Friday, was known for his integrity and erudite yet amiable manner. The appointee of President George H.W. Bush represented an era in which Supreme Court justices did not hew to the political interests of the presidents who appointed them. Souter’s record as a Republican appointee who turned left generated plenty of resentment and the mantra of “No more Souters.” Federalist Society leaders and other right-wing advocates disappointed with his record urged more comprehensive vetting of possible Republican nominees. So searing was the Souter lesson that when President Donald Trump conferred in his first term with Federalist Society leader Leonard Leo, Souter’s name came up. “He talked about Souter,” Leo told me during Trump’s first presidency. “That was of his generation. He knew of the Souter problem” and lack of an extensive paper trail. President Bush landed on Souter to succeed retired liberal Justice William Brennan at the urging of Granite State natives US Sen. Warren Rudman and John Sununu, Bush’s chief of staff. Sununu, a former New Hampshire governor, predicted Souter would be a “home run” for conservatives. Souter had served in various public offices in New Hampshire, including as attorney general and a state supreme court justice. But Souter had a scant record on federal issues and no national profile. When asked before his Senate confirmation hearings began how it felt to be snatched from obscurity, Souter remarked, “I must say, I never thought of myself as that obscure.” Still, he stood apart from other justices. The lifelong bachelor shunned the Washington social scene. When each annual term was over, he would immediately drive in his Volkswagen to his quiet, book-filled home in New Hampshire. He retired from the bench at the relatively young age (for a jurist) of 69. President Barack Obama chose as his successor Sonia Sotomayor, the country’s first Hispanic justice. “I know of no one who cherished books more than David,” Sotomayor said in her tribute on Friday, “and he filled his mind and heart with the lessons of beauty they imparted.” Souter’s legacy comes down in part to how he slowed – rather than accelerate, as predicted – the conservative takeover of the Supreme Court. When he joined with allies Justices Sandra Day O’Connor and Anthony Kennedy to ensure the preservation of Roe in 1992, Souter said, “Despite the controversy it has produced, the decision has not proven unworkable in practice. It has undoubtedly engendered reliance and countless people have organized intimate relationships and made choices that define their views of themselves and their places in society in the two decades since it was handed down.” Just as today’s Supreme Court has discarded that view, it has also overturned decisions Souter signed permitting such racial remedies as campus affirmative action. Rejected, too, is Souter’s resolute position on the First Amendment. Souter authored the court’s 2005 opinion that struck down the posting of the Ten Commandments in two Kentucky courthouses. “(T)he divisiveness of religion in current public life is inescapable,” he 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.” 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 at the age of 85.Souter was nominated for the Supreme Court by President George H.W. Bush in 1990. Bush's advisers assured the president that Souter would move the court to the right — a misreading that continues to reverberate today. Souter sided with liberal justices in cases dealing with civil rights and affirmative action, and he helped form the opinion that that the right to abortion was implicitly guaranteed by the Constitution. Following Souter's retirement, President Barack Obama nominated Sonia Sotomayor to take his seat.“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.” Of Souter’s 19-year tenure on the high court, Bush v. Gore stands out. In that 2000 case, the justices cut off presidential election recounts in Florida and ensured that George W. Bush, the son of the man who appointed Souter became president. The controversy deeply split the nation and the court. Souter dissented with fellow liberals, writing that the Florida Supreme Court and ultimately Congress should have been allowed to resolve the matter. He said the “political tension could have worked itself out” without the court’s interference. That decision left bitterness all around, but Souter was known for keeping any rancor in check. He had a generous spirit, observed when his predecessor, Justice Brennan, died in 1997 and Souter offered a funeral tribute that reflects on him in this moment. “While I was with him, he might tell me some things that were true,” Souter said of Brennan, a master of gathering a majority on the nine-member court, “like how to count to five. And he might tell me a few things that were patently false, which he thought I might enjoy hearing anyway. “He’d bring up some pedestrian opinion that I’d delivered, and he’d tell me it was not just a very good opinion but a truly great one, and then he’d go on and tell me it wasn’t just great but a genuine classic of the judge’s art. And I’d listen to him, and I’d start to think that maybe he was right. Maybe it was pretty good. And when, inevitably, I’d realize again that it wasn’t, I’d still feel great myself. I always felt great when I’d been with Bill … That’s why the good-bye comes so hard.”