When David H Souter, who has died aged 85, was appointed to the US supreme court by George HW Bush in 1990, it was called a “home run for conservativism” by Bush’s chief of staff John Sununu, who, as governor of New Hampshire had appointed Souter to the state’s supreme court. But it would turn into an appointment whose impact outweighed the appointee’s important judicial contributions.
Bush had previously considered a number of conservative ideologues: Senator Orrin Hatch, future Bill Clinton nemesis Kenneth Starr and Clarence Thomas (whose nomination was widely assumed to be held until the retirement of Thurgood Marshall, since both were black). As the Democrats held a 55-45 Senate majority, and in 1987 rejected Ronald Reagan’s choice, Robert Bork, for being an unrepentant ideologue, when the New Hampshire senator, Warren Rudman, recommended Souter to Sununu, he seemed a safe pair of conservative hands. He also had the advantage of having served quietly in his home state, without leaving a paper trail of controversy on national issues.
The open seat had been vacated by William Brennan, for decades the court’s liberal bastion. Republicans already held a nominal 6-2 advantage in justices, and aimed to overturn abortion rights established by the 1973 Roe v Wade decision. Souter’s nomination brought protests from the National Organization for Women, as well as the National Association for the Advancement of Colored People, who questioned his commitment to enforcing civil rights legislation. Still, the senate judiciary committee endorsed Souter 13-1; the Senate confirmed his nomination 90-9. All nine dissenting votes came from Democrats, including Ted Kennedy, who compared Souter to Bork. Few had noticed when, during his hearing, Souter explained to Republican senator Chuck Grassley that “courts must accept their own responsibility for making a just society”.
So conservatives were confounded when, in 1992’s Planned Parenthood v Casey, which was intended to end the right to abortion, Souter joined the court’s two remaining “liberals”, Harry Blackmun (who had written the Roe v Wade decision) and John Paul Stevens, but also fellow Republican appointees Anthony Kennedy and Sandra Day O’Connor to reject Casey. Souter’s part of the decision developed eloquently from the notion of stare decisis, or respecting precedent, and was crucial to giving those conservative members of the so-called “troika” justification for their decisions.
The right felt betrayed; Sununu later claimed Souter deceived him about his true politics, ignoring perhaps Rudman’s evaluation that “we don’t discuss politics because David doesn’t know about politics”. The rallying cry “No More Souters” began an era of vetting Republican nominees for ideological purity by the Federalist Society. When Roe v Wade was overturned in 2022’s Dobbs v Jackson WHO decision, all six justices voting for repeal were Republicans appointed after Stouter, all of whom had professed allegiance to stare decisis in their hearings.
In retrospect, Souter’s “move” had many precedents, from Chief Justice Earl Warren to both Stevens and Blackmun; it was not so much that Souter became more liberal, but the centre of the court moved further to the right. Souter’s own resistance to this should have been more apparent from his history.
David Hackett Souter was born 17 September 1939 in Melrose, Massachusetts, the home town of his father, Joseph, a bank officer. When David was 11, the family moved to a farmhouse in Weare, New Hampshire inherited by his mother, Helen (nee Adams), who traced her ancestry back to the Mayflower. After high school in Concord, Souter graduated from Harvard in philosophy. He wrote his senior thesis on the towering supreme court justice Oliver Wendell Holmes, who espoused “legal positivism”, arguing that social facts outweighed natural law, and must be accepted to change as social reality changed. As a Rhodes scholar he received an MA in jurisprudence at Magdalen College, Oxford, and returned to Harvard to take a law degree in 1966.
Bored with two years in private practice in Concord, he was appointed an assistant attorney general of New Hampshire by the then-governor Meldrim Thompson, a leading light among conservative republicans. Rudman became attorney general in 1970, and took Souter under his wing; when he stepped down in 1976, Souter, still only 36, replaced him. In 1978 he joined New Hampshire’s superior court; in 1983 a seat on the state supreme court followed. After his 1990 election, Bush named Souter to the US court of appeals for the first circuit (eastern New England and Puerto Rico). He’d barely moved into his Boston office when he was called to Washington to discuss the supreme court seat.
Souter’s position on the court’s liberal side was cemented by chief justice William Rehnquist’s moves through the 1990s to reduce the court’s influence over the states. Anthony Kennedy, though a staunch conservative, became the “swing” vote. The apotheosis of this schism arrived in the 2000 Bush v Gore case, in which Kennedy’s was the fifth vote in a 5-4 decision that stopped the recount of presidential votes in Florida, in effect declaring George W Bush the president. Jeffrey Toobin’s 2007 book, The Nine, says the decision was “so transparently political that it scarred Souter’s belief in the supreme court as an institution”.
Souter never joined Washington society, eschewing the sometimes lavish hospitality directed at justices. Each summer he drove himself back to the house in Weare he shared with his mother, until she died in 1995. He avoided modern media in favour of books; he wrote his decisions in longhand with a fountain pen. As his supreme court colleague Stephen Breyer remarked in 2021, “he writes clearly for an important reason. He possesses great common sense.” Yet when appointed to the US circuit court, his successor as New Hampshire attorney general, Thomas Rath, had to take him to a bank to help him obtain a credit card.
He retired early, aged 69, waiting until 2009 so that Barack Obama could appoint a liberal justice, Sonia Sotomayor. He returned to serving on panels for the first circuit. He largely steered clear of the public eye, though a 2012 lecture he gave in Concord, warning of the dangers of “civic ignorance”, has been cited many times as a foreshadowing of Donald Trump’s presidencies. Eventually he moved from Weare to nearby Hopkinton, and a house whose structure was strong enough to hold his collection of books.
