Former Supreme Court justice David Souter, the intellectual New Englander who disappointed Republicans and delighted liberals by slowing a conservative transformation of the high court, died May 8 at his home in New Hampshire. He was 85.
The high court announced his death but did not cite a cause.
Justice Souter, who supplied a key vote to uphold abortion rights in his early years on the court, was a little-known New Hampshire judge dubbed the “stealth candidate” when President George H.W. Bush nominated him in 1990 to replace justice William J. Brennan Jr., then the anchor of an eroding liberal majority.
John H. Sununu, Bush’s chief of staff, assured Republicans that the pick would be a “home run for conservatives” who were on the brink of a significant remaking of the court. But the nominee proved to be anything but. His backers in Washington did not realize they were getting someone with a conservative temperament and a dedication to judicial restraint, rather than a conservative ideologue.
In nearly two decades on the court, Justice Souter was a reliable vote for the liberal side of the bench in cases involving affirmative action, gay rights, separation of church and state, and restriction of the death penalty. He saw his role as one of quiet resistance against excess and dramatic change. Years later, when vacancies arose on the court, regrets in conservative quarters about his nomination still inspired the refrain: “No more Souters.”
One of Justice Souter’s most significant opinions came two years into his tenure when he joined two other justices nominated by Republican presidents — Anthony M. Kennedy and Sandra Day O’Connor — in writing an unusual three-member opinion reaffirming a woman’s constitutional right to have an abortion.
To reverse the central holding of the 1973 Roe v. Wade decision, Justice Souter wrote, would appear to be a “surrender to political pressure. … So to overrule under fire in the absence of the most compelling reason to re-examine a watershed decision would subvert the court’s legitimacy beyond any serious question.”
A slight, soft-spoken man with frugal tastes, Justice Souter was never a creature of the court or its trappings. He shunned the spotlight and the social scene in Washington, referring to his role as the “world’s best job in the world’s worst city.” As soon as he could at the end of each term, he would drive his Volkswagen back to his dilapidated farmhouse in the tiny hamlet of Weare, New Hampshire, to spend the summer reading and hiking in the White Mountains.
In one of his rare public speeches, Justice Souter complained about being pulled away from his history books at the start of the court term.
“I undergo a sort of annual intellectual lobotomy, and it lasts until the following summer when I sort of cram what I can into the summertime,” he told the American Academy of Arts and Sciences in 2009.
While many of his colleagues went on book tours, gave interviews and traveled extensively to lecture, Justice Souter did not want to attract a public following like that of his outspoken fellow justice Ruth Bader Ginsburg.
“In a perfect world, I would never give another speech, address, talk, lecture or whatever as long as I live,” he wrote in a letter to then-retired justice Harry A. Blackmun.
Of the much-debated concept of installing cameras in the court, Justice Souter quipped, “Over my dead body.”
While other justices remained on the bench into their 80s, Justice Souter retired at the relatively young age of 69, not forced by health or other circumstance, but by a desire to return to New Hampshire and the comfort of 18th-century history books.
He departed demoralized and concerned about the public perception that politics was playing a role in the court’s rulings, particularly when the justices were pulled into the case that, in a 5-4 ruling, determined the outcome of the 2000 presidential election and put George W. Bush in the White House.
Among the four dissenters, Justice Souter agreed with the majority that Florida’s varying standards for counting election ballots raised equal protection problems, but he found no reason to shut down the recount. He worried about the damage the case would do to the court’s reputation for independence.
“Bush v. Gore was the case that broke Souter’s heart,” said Kermit Roosevelt, a University of Pennsylvania law professor, who clerked for the justice. “It shook his faith in the court as an institution and made it harder for him to feel he was engaged in something worthwhile. It made judging seem like an act of political will, which he did not want to be doing.”
After Justice Souter announced his retirement, President Barack Obama praised his tenure, saying: “He never sought to promote a political agenda. And he consistently defied labels and rejected absolutes, focusing instead on just one task — reaching a just result in the case that was before him.”
Not surprisingly, his record drew harsh critiques from conservatives, including from constitutional scholar John O. McGinnis of Northwestern University’s law school, who wrote: “Souter will be known wholly for doing the unexpected by becoming one of the most liberal justices on the court. … He leaves no independent jurisprudential mark and not a single memorable phrase in an opinion of which he was the acknowledged author.”
Justice Souter continued to hear cases for years at the federal appeals court in Boston where he served briefly before his nomination to the high court.
New England upbringing
David Hackett Souter, an only child, was born in the Boston suburb of Melrose on Sept. 17, 1939. His father was an assistant bank manager, and his mother was a store clerk. His great-great-grandfather had played a role in securing Abraham Lincoln’s presidential nomination, and other relatives had worked in the Underground Railroad. Justice Souter’s family left Massachusetts in 1950 for the farmhouse in Weare.
A serious student in high school, Mr. Souter was voted “most literary,” “most sophisticated” and “most likely to succeed” — and was nicknamed “Soutie.”
Justice Souter attributed his interest in government service to the time he spent as a kid sitting in the back of town meetings, the annual New Hampshire tradition of direct democracy in which residents debate how to spend local taxpayer money.
At Harvard, he wrote his senior thesis on the judicial philosophy of Justice Oliver Wendell Holmes. Justice Souter admired the justice’s commitment to restraint and his view that rulings should be made independent of political beliefs, Justice Souter’s classmate John L. McCausland, an Episcopalian minister, described to journalist David Margolick in the New York Times. Friends jokingly referred to him then as “Mr. Justice Souter.”
Justice Souter graduated from Harvard in 1961 and continued his studies as a Rhodes scholar at the University of Oxford in England before entering Harvard Law School.
He returned home after completing law school in 1966 and spent two years at a Concord law firm. He quickly became disenchanted with private practice and joined the staff of the New Hampshire attorney general’s office, where he would spend the next decade. Justice Souter became the right-hand man to Warren Rudman, the attorney general and later a U.S. senator, who was his mentor, friend and political patron within the Republican Party.
When Rudman left the attorney general’s job in 1976, he persuaded the governor to elevate Justice Souter to the post at age 36. In that role, Justice Souter was soon defending in court the controversial positions of the state’s right-wing, fiery governor Meldrim Thomson.
Representing Thomson, Justice Souter backed the governor’s decision to fly the flags at half-staff on Good Friday. When 1,400 protesters picketed the building of the Seabrook nuclear plant, the attorney general pushed hard for their prosecution.
But he also spoke out against and blocked plans to legalize casino gambling in the state, an effort he later called his “greatest crusade,” historian David Garrow said.
With Rudman’s support, Justice Souter joined the Superior Court bench in New Hampshire two years later and then the state Supreme Court in 1983.
The call from Bush’s White House counsel came just days after Brennan announced his retirement and three months after Justice Souter’s appointment to the U.S. Court of Appeals for the 1st Circuit in Boston.
The liberal bloc on the high court was waning, and conservatives were close to having a majority to overturn Roe v. Wade. But Bush wanted to avert a bitter fight in Congress, where Democrats had three years earlier scuttled President Ronald Reagan’s nomination of Robert H. Bork, an outspoken conservative.
Justice Souter, the quiet, well-credentialed intellectual, could not have been more different. His record from the New Hampshire bench revealed little about his positions on the issues of the day. With his limited trail of opinions, legal articles or speeches, Justice Souter was referred to as the “stealth candidate” — a reference to the Air Force bomber designed to avoid detection.
Bush introduced Justice Souter as a judge who “will interpret the Constitution” and “not legislate from the federal bench.” Rudman called him the “single most brilliant intellectual mind I have ever met.”
In three days before the Senate Judiciary Committee, Justice Souter politely, but firmly, declined to take positions on abortion and other areas on which he had not ruled.
Women’s rights groups were not sure what to make of the 50-year-old bachelor, who lived with his mother until she moved to a retirement community. The National Abortion Rights Action League said a vote for Justice Souter represented a “dangerous leap of faith,” and his nomination was opposed by the two Democratic Massachusetts senators, Edward Kennedy and John F. Kerry. Even so, Justice Souter was quickly and overwhelmingly confirmed 90-9.
Preserving abortion rights
In his first year on the bench, Justice Souter provided some comfort to conservatives as the fifth vote in the abortion counseling case Rust v. Sullivan. The majority opinion penned by Justice Antonin Scalia upheld regulations prohibiting federally funded family planning clinics from discussing abortion with patients.
The next year, however, Justice Souter surprised both sides in a case challenging Pennsylvania’s law regulating abortion that opponents said would allow states to ban abortion. Justice Souter worked secretly on the joint opinion with O’Connor and Kennedy in Planned Parenthood of Southeastern Pennsylvania v. Casey that preserved the central constitutional right promised by Roe and created a test that the court continued to apply 25 years later.
“For two decades of economic and social developments, people have organized intimate relationships and made choices that define their views of themselves and their places in society, in reliance on the availability of abortion in the event that contraception should fail,” the joint opinion said. “The ability of women to participate equally in the economic and social life of the nation has been facilitated by their ability to control their reproductive lives.”
Justice Souter continued to displease social conservatives with his vote in 1992 to prohibit prayer at high school graduation ceremonies. In 1996, he voted to strike down a Colorado measure that invalidated laws protecting gay people from discrimination. He joined Kennedy’s strongly worded majority opinion in 2003 that overturned anti-sodomy statutes in a major victory for gay rights.
Justice Souter was not known for grand, memorable writing flourishes, but for ponderous opinions in a 19th-century literary style. He had no computer in his chambers and wrote his comments by hand, usually with a fountain pen, relying only on natural light.
On the bench, he peppered attorneys with polite but relentless questions to the point that one could “get a crick in his neck listening to Souter’s expansive questions,” journalist Joan Biskupic, who then covered the Supreme Court for The Washington Post, wrote in 1993. “He tends to ask and ask and ask, usually pounding away at the nut of an issue,” leaving the other justices to rock “in their leather chairs and occasionally [look] up at the ceiling.”
Justice Souter shared Scalia’s appreciation for history, but more often than not took away different meanings. In contrast to the text-bound “originalism” of Scalia and another H.W. Bush appointee, Clarence Thomas, Justice Souter’s opinions reflected “his flexible approach to constitutional interpretation and deep commitment to precedent, including expansive civil liberties rulings,” wrote biographer Tinsley Yarbrough.
Although Justice Souter and Scalia had a warm personal relationship, they clashed intellectually and at times with fierce language. Writing for the majority in 1994, Justice Souter said the state of New York could not carve out a separate public school district for Hasidic Jewish children. In a scathing dissent, Scalia slammed Justice Souter’s opinion and what he called his “facile conclusion.”
In response, Justice Souter called Scalia “as blind to history as to precedent.” The court, he wrote, will continue to insist that singling out “a particular religious sect for special treatment” violates the Constitution. Justice Souter added that “Justice Cardozo once cast the dissenter as ‘the gladiator making a last stand against the lions.’ Justice Scalia’s dissent is certainly the work of a gladiator, but he thrusts at lions of his own imagining.”
In minority in rightward swing
On many major issues during Justice Souter’s tenure, the court was moving to the right, and Justice Souter was generally on the losing side.
He was in the minority and troubled by the court’s 5-4 ruling in 2007 that struck down school desegregation plans. Justice Souter appeared “visibly angry” during oral arguments in a 2009 case that stopped short of striking down a key provision of the Voting Rights Act, according to Nathaniel Persily, an election law expert who was in the courtroom.
When he announced his retirement, Justice Souter was in the midst of writing a dissent in the first iteration of Citizens United v. FEC, the case that would ultimately remove restrictions on corporate and union campaign spending. Justice Souter’s unpublished dissent accused Chief Justice John G. Roberts Jr. of “violating the court’s own procedures to engineer the result he wanted,” as legal writer Jeffrey Toobin described it in a New Yorker magazine piece.
Instead of issuing a ruling, Roberts took the unusual step of scheduling the case for reargument to recast the questions for the court. The 5-4 ruling, which came after Justice Souter’s departure, reversed decades of law and precedent, opening the door for corporations and unions to play a bigger role in financing elections.
Justice Souter’s formal bearing and monastic lifestyle in Washington meant he was often misunderstood as an eccentric recluse. He was known for his sparse lunches, usually yogurt and an apple — core and all. Rudman once joked that the black judicial robes would jazz up his wardrobe. When in D.C., he routinely jogged at the track at Fort McNair, a few blocks from his apartment in Southwest Washington. During one 2004 jog, he was mugged.
With his close circle of longtime friends, Justice Souter was known for his dry humor and as a gregarious storyteller, whose impressions of people were punctuated by his New Hampshire twang. After his retirement, Justice Souter moved out of the family farmhouse and into a more modern home just outside of the state’s capital, Concord, where he built a library for his extensive collection of books.
He had no immediate survivors.
It was no surprise to the people closest to Justice Souter in New Hampshire that he left the high court when he did and that he had become disenchanted.
“Washington was a tour of duty rather than a destination,” Tom Rath, his longtime friend and former colleague in the attorney general’s office, said in an interview with The Post.
“He has a vision of the court as a moderating influence, to serve as a unifying part of the country, between the more partisan executive and legislative branches,” Rath told the New Republic magazine in 1993. “I think there is a central core of David Souter that sees the court as a conciliator and legitimizer, bringing society together.”
On the day in 2000 that the court announced the decision that would assure the presidency for George W. Bush, Justice Souter left the building in great distress. He gave each of his law clerks a copy of a Robert Frost poem, he later recounted at one of their annual reunions.
The last line of the poem seemed to capture his thinking then about the court: “What to make of a diminished thing.”
