David H. Souter, Republican Justice Who Allied With Court’s Liberal Wing, Dies at 85
   

He left conservatives bitterly disappointed with his migration from right to left, leading to the cry of “no more Souters.”

David H. Souter, a New Hampshire Republican who was named to the Supreme Court by President George H.W. Bush and who over 19 years on that bench became a mainstay of the court’s shrinking liberal wing, died on Thursday at his home in New Hampshire. He was 85.

His death was announced on Friday morning by the Supreme Court, which did not cite a cause, saying only that he had died “peacefully.”

A shy man who never married and who much preferred an evening alone with a good book to a night in the company of Washington insiders, Justice Souter retired at the unusually young age of 69 to return to his beloved home state. His retirement at the end of the court’s 2008-09 term gave President Barack Obama a Supreme Court vacancy in the opening months of his presidency. The president  named  Judge Sonia Sotomayor to the seat.

by the end of the second year of the supreme court,  justice souter had acquired  the  label  that would stick for the remainder of his tenure. He was the justice who would surprise presidents who appointed him, who left conservative republicans  bitterly  disappointed; whose migration on the bench from right to left led to the cry of “no more Souters” when another president named Bush, George W., had Supreme Court vacancies to fill.

Those who expressed such surprise, who either implicitly or directly accused Justice Souter of having portrayed himself one way and of turning out to be something else entirely, either failed to pay attention to his testimony before the Senate Judiciary Committee during his confirmation hearing in September 1990, or chose not to believe what they heard.

Justice Souter portrayed himself as he was: a judge of basically conservative instincts who took as his role model Justice John Marshall Harlan II, a distinguished New York lawyer and an Eisenhower appointee who was often in dissent during the heyday of Supreme Court liberalism under Chief Justice Earl Warren.

Justice Harlan nonetheless viewed the Constitution as a charter of “ordered liberty,” the meaning of which could evolve over time to encompass concepts not explicitly mentioned in the text, such as the right to privacy. David Souter saw the Constitution in the same light. Only in the increasingly partisan and polarized climate of the1990s and later could an interpretive stance that was once so widely held as barely debatable come to be viewed as the hallmark of a judicial liberal.

During his confirmation hearing, Justice Souter tipped his hand most directly in a colloquy with Senator Charles E. Grassley, the conservative Republican from Iowa, who asked him for his views on “judicial activism” and “government by the judiciary.” These were code words intended to give the nominee a chance to show his conservative stripes by proclaiming a profound dislike for both concepts.

Regarded by Republicans as a “home run” nomination to support their ideologies, Justice Souter furthered his status as an enigma and surprised everyone when he served on the Supreme Court of the United States and voted reliably with the court’s liberal members. David Hackett Souter was born in Massachusetts as the only child of Joseph and Helen Souter. When he was eleven, his family moved to his grandparents’ farmhouse in New Hampshire. He attended Harvard University for his undergraduate degree, where he majored in philosophy and expressed his interest in law through his senior thesis, which was on the legal philosophy of Oliver Wendell Holmes, Jr. Souter graduated magna cum laude in 1961 and went on to study jurisprudence at Magdalen College at Oxford for two years on a Rhodes scholarship. Afterwards, he returned to Harvard for law school and graduated in 1966. 

Souter began his career as a lawyer in New Hampshire at a prominent private firm, Orr & Reno, and was already described as a “natural judge” by his colleagues. After realizing he disliked private practice, he took a position in the New Hampshire Attorney General’s office in 1968. Three years later, Souter became deputy to the state Attorney General, Warren Rudman, who later became a United States Senator. When Rudman stepped down in 1976, Souter was appointed to take his place. 

Again quickly assuming new responsibilities, two years later, Souter was appointed Associate Justice of the New Hampshire Superior Court. While in this position, Souter became familiar with both criminal and civil cases and developed a strong interest in the jury system. Five years later, in 1978, Governor John Sununu appointed Souter to the Supreme Court of New Hampshire. In 1990, Sununu, while serving as George H.W. Bush’s chief of staff, recommended Souter for Justice Brennan’s seat on the Supreme Court. At the time of his nomination, Souter’s only national service was his three months on the United States Court of Appeals for the First Circuit. Souter’s confirmation to the Supreme Court was easy compared to later appointees, as his professional record in state courts was uncontroversial. The few senators that voted against him disliked his close ties with conservative New Hampshire politicians. But by the late 1990s, Souter moved towards voting more consistently with the liberal justices, such as Justices John Paul Stevens and Ruth Bader Ginsburg.

Once on the Court, Souter’s personality and vision of the law became evident in his opinions. His writings reflected the influence of Justice Holmes and of the Harvard Law School, most notably in his decision in Washington v. Glucksberg (1997), when he discussed the value of the common law. Many of Souter’s opinions expressed a view that law should depend on underlying empirical facts and should change when those empirical realities shift. For example, in Nixon v. Shrink Missouri PAC (2000), Souter stated that courts should be deferential to legislative judgments about the need for campaign finance regulations. 

Souter strongly opposed  the Court enforcing federalism-based limits on Congress’s enumerated powers, and the view that the Court should limit the extent to which race can be taken into account in the design of election districts. His consistent dissents on these issues urged the Court to take a less aggressive role in limiting the actions of political branches. In the area of religion, Souter strongly favored separation between religion and government, which was evident in his opinion in Hurley v. Irish-American Gay, Lesbian, and Bisexual Group of Boston (1995). 

Two of Souter’s votes in important cases have highlighted his legacy and are particularly characteristic of his time on the bench. In Bush v. Gore (2000), Souter agreed with the majority that the recount in Florida was unconstitutional but also agreed with the dissent when they said the Court does not have the authority to terminate the recount process. In Planned Parenthood of Southeastern Pennsylvania v. Casey (1992), Souter coauthored an opinion with Justice Sandra Day O’Connor affirming Roe v. Wade, asserting a strong justification for adhering to the Court’s precedent. 

Long before President Obama’s election in 2008, Souter had expressed a desire to leave Washington, D.C. and go back to his native New Hampshire. Once he was certain no other justices planned to retire in June 2009, Souter announced his retirement and moved back to his beloved New Hampshire, where he resides to this day. 

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