David Souter came to the supreme court as a man who was expected to make conservatives happy. To put it mildly, it didn’t turn out that way.
In July 1990, When George H.W. Bush nominated Souter to fill the seat of William J. Brennan, one of the most resolute members of the court’s dwindling liberal minority, Bush thought, or at least hoped, that he would be getting a consistently right-leaning justice. What he got instead was a man who helped produce the 5-4 majority that upheld Roe v. Wade in 1992, who frequently ruled in favor of the rights of the accused in criminal cases, who supported gay rights and opposed school prayer. As a nominee Souter had the strong support of Bush’s White House chief of staff John Sununu, who would assure his fellow conservatives that Souter would be a “home run” for their team. In retrospect, he was right about the home run, wrong about the team.
Souter had been a federal appeals court judge in Boston for just three months when Bush plucked him out of relative obscurity. Before that he had spent seven years on the New Hampshire state supreme court and 10 in the state attorney general’s office. Neither job gave him much opportunity to set down his views on divisive issues like abortion rights, affirmative action and gun control. When Justice Thurgood Marshall, another of the court liberals, was asked what he knew about Souter, all he could say was: “Never heard of him”.
But it was Souter’s very lack of a firm ideological profile that appealed to Bush. Three years earlier liberal activist groups had derailed the court nomination of the indisputably conservative Robert Bork. If Souter didn’t have a long paper trail of court rulings, law review articles and books, it would be much harder for liberals to stage a replay of the Bork defeat.
In the immediate aftermath of his nomination, the search was on for clues to the “real” David Souter. And everyone came up with the same opaque portrait: he was a solitary man, given to serious reading Shakespeare, Dickens, Proust and mountain trail hiking. Since the age of 11 he had lived in the same rundown farmhouse near Concord, N.H. Still unmarried at age 50, there was no evidence he was gay something plenty of people on both sides of the divide investigated as soon as he was nominated.
What Souter did have were unquestionable intellectual chops. He majored in philosophy and graduated magna cum laude and Phi Beta Kappa from Harvard. Then came the Rhodes scholarship that took him to Oxford and the Harvard law degree that quickly brought him a job with a New Hampshire law firm. But Souter was restless in private practice. By 1968 he had joined the staff of the state attorney general’s office. When Warren Rudman became attorney general two years later he tapped Souter as his chief aide, and when Rudman moved on to the U.S. Senate in 1976 he persuaded New Hampshire’s ultra-conservative Gov. Meldrim Thomson to replace him with Souter.
Souter served as attorney general for two years before moving on to the state’s highest court, where he would leave behind a record in which liberals and conservatives could both find encouraging signs. He was a strong supporter of environmental and consumer protections. But in criminal cases he tended to favor the prosecution. And in a 1986 dissent he adopted the “strict constructionist” argument that a court’s job was to determine how constitutional language was understood by the framers who proposed it.
When it came time for Souter’s name to go before the U.S. Senate, the first part of Bush’s gamble paid off there was no bruising confirmation fight. He won Senate approval by a vote of 90-9. But once Souter was on the court, it wasn’t long before it became obvious that he couldn’t be counted on to solidify an ever emerging but never quite stable conservative majority anchored at the time by Chief Justice William Rehnquist and Antonin Scalia, and often supported by the more moderate William Kennedy and Sandra Day O’Connor.
In his first year Souter sided with those four on some important criminal justice cases, including one in which he ruled that the introduction at trial of a coerced confession was a “harmless error” that shouldn’t automatically result in the overturning of a guilty verdict on appeal. But the next year he outraged anti-abortion forces in a pivotal case, Planned Parenthood v. Casey. Souter joined with Kennedy and O’Connor in a joint opinion that upheld the “essential holding” of Roe v. Wade. Though in the same decision the three justices approved most provisions of the Pennsylvania Abortion Control Act, a law that put limits on abortion rights, they had ensured the survival for years to come of the basic right to choose.
That same year, in Lee v. Weisman, Souter joined the 5-4 majority that disallowed a prayer at a public high school graduation. And as the ’90s wore on and Bill Clinton’s court nominees Ruth Bader Ginsburg and Stephen Breyer came on board, Souter was increasingly inclined to join with them and John Paul Stevens to form the court’s liberal wing.
So in 2000, Souter was one of the four dissenters in Bush v. Gore, the case that allowed Florida to shut down the recount in that year’s presidential election. Three years later he joined the six-vote majority that struck down laws forbidding gay sex. Two years after that he upheld the right of government to seize private property to encourage economic development.
Local activists were so angry about that one that they put an initiative on the ballot in Souter’s hometown to seize his home and replace it with an inn to be called the Lost Liberty Hotel. It was voted down, so the old farmhouse will still be there waiting for him when Souter leaves Washington still a loner, still a mystery in some ways, but a man we know much more about now than we did when he first arrived.
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