David Souter


David Hackett Souter is a retired Associate Justice of the Supreme Court of the United States. He served from October 1990 until his retirement in June 2009. Appointed by President George H. W. Bush to fill the seat vacated by William J. Brennan Jr., Souter sat on both the Rehnquist and Roberts Courts.
Souter grew up in Massachusetts and New Hampshire and attended Harvard College, Magdalen College, Oxford, and Harvard Law School. After briefly working in private practice, he moved to public service. He served as a prosecutor, in the New Hampshire Attorney General's office, as the Attorney General of New Hampshire, as an Associate Justice of the Superior Court of New Hampshire, as an Associate Justice of the New Hampshire Supreme Court and briefly as a Judge of the United States Court of Appeals for the First Circuit.
He was nominated for the Supreme Court without a significant "paper trail" but was expected to be a conservative Justice. Within a few years of his appointment Souter moved towards the center and eventually came to vote reliably with the Court's liberal wing.
Following the election of Barack Obama, a Democratic President, Souter was more inclined to leave the Court and return to New Hampshire. He announced his retirement in mid-2009 and was succeeded by Sonia Sotomayor. Souter continues to hear cases by designation at the circuit court level.

Early life and education

Souter was born in Melrose, Massachusetts, on September 17, 1939, the only child of Joseph Alexander Souter and Helen Adams Souter. At age 11, he moved with his family to their farm in Weare, New Hampshire.
Souter graduated second in his class from Concord High School in 1957. He then attended Harvard College, graduating in 1961 with an A.B. magna cum laude in philosophy and writing a senior thesis on the legal positivism of Supreme Court Justice Oliver Wendell Holmes Jr. Souter was a member of Phi Beta Kappa. He was selected as a Rhodes Scholar and earned a Bachelor of Arts degree from Magdalen College, Oxford, in 1963. He then entered Harvard Law School, graduating in 1966.

Early career

In 1968, after two years as an associate at the law firm of Orr & Reno in Concord, New Hampshire, Souter realized he disliked private practice and began his career in public service by accepting a position as an Assistant Attorney General of New Hampshire. As Assistant Attorney General he prosecuted criminal cases in the courts. In 1971, Warren Rudman, then the Attorney General of New Hampshire, selected Souter to be the Deputy Attorney General. Souter succeeded Rudman as New Hampshire Attorney General in 1976.
In 1978, with the support of his friend Rudman, Souter was named an Associate Justice of the Superior Court of New Hampshire. As a judge on the Superior Court he heard cases in two counties and was noted for his tough sentencing. With four years of trial court experience, Souter was appointed to the New Hampshire Supreme Court as an Associate Justice in 1983.
Shortly after George H. W. Bush was sworn in as President, he nominated Souter for a seat on the United States Court of Appeals for the First Circuit. Souter had had seven years of judicial experience at the appellate level, four years at the trial court level, and ten years with the Attorney General's office. He was confirmed by unanimous consent of the Senate on April 27, 1990.

U.S. Supreme Court appointment

President George H. W. Bush originally considered appointing Clarence Thomas to Brennan's seat, but decided that Thomas did not have enough experience as a judge. Warren Rudman, who had since been elected to the U.S. Senate, and former New Hampshire Governor John H. Sununu, then Chief of Staff to President Bush, suggested Souter, and were instrumental in his nomination and confirmation. At the time, few observers outside New Hampshire knew who Souter was, although he had reportedly been on Reagan's short list of nominees for the Supreme Court seat that eventually went to Anthony Kennedy.
Souter was seen as a "stealth justice" whose professional record in the state courts provoked little real controversy and provided a minimal "paper trail" on issues of U.S. Constitutional law. Bush saw the lack of a paper trail as an asset, because one of President Reagan's nominees, Robert Bork, had been rejected by the Senate partially because of his extensive written opinions on controversial issues. Bush nominated Souter on July 25, 1990, saying that he did not know Souter's stances on abortion, affirmative action, or other issues.
Senate confirmation hearings were held beginning on September 13, 1990. The National Organization for Women opposed Souter's nomination and held a rally outside the Senate during his confirmation hearings. The president of NOW, Molly Yard, testified that Souter would "end freedom for women in this country." Souter was also opposed by the NAACP, which urged its 500,000 members to write letters to their senators asking them to oppose the nomination. In Souter's opening statement before the Judiciary Committee of the Senate he summed up the lessons he had learned as a judge of the New Hampshire courts:
Despite the opposition, Souter won confirmation easily. The Senate Judiciary Committee reported out the nomination by a vote of 14–3, the Senate confirmed the nomination by a vote of 90–9, and Souter took his seat shortly thereafter, on October 9, 1990.
The nine senators voting against Souter included Ted Kennedy and John Kerry from Souter's neighboring state of Massachusetts. These senators, along with seven others, painted Souter as a right-winger in the mold of Robert Bork.

U.S. Supreme Court career

Souter opposed having cameras in the Supreme Court during oral arguments because he said questions would be taken out of context by the media and the proceedings would be politicized.
He also served as the court's designated representative to Congress on at least one occasion, testifying before committees of that body about the court's needs for additional funding to refurbish its building and for other projects.

Expected conservatism

At the time of Souter's appointment, John Sununu assured President Bush and conservatives that Souter would be a "home run" for conservatism. In his testimony before the Senate, he was thought by conservatives to be a strict constructionist on constitutional matters, but he portrayed himself as a moderate who disliked radical change and attached a high importance to precedent. In the state attorney general's office and as a state Supreme Court judge, he had never been tested on matters of federal law.
Initially, from 1990 to 1992, Souter leaned conservative. In his first year, he and Scalia voted alike close to 85% of the time; Souter voted with Kennedy and O'Connor about 97% of the time. The symbolic turning point came in two cases in 1992: Planned Parenthood v. Casey, in which the Court reaffirmed the essential holding in Roe v. Wade; and Lee v. Weisman, in which Souter voted against allowing prayer at a high school graduation ceremony. In Planned Parenthood v. Casey, Kennedy considered overturning Roe and upholding all the restrictions at issue in Casey. Souter considered upholding all the restrictions but still was uneasy about overturning Roe. After consulting with O'Connor, however, the three developed a joint opinion that upheld all the restrictions in Casey except for the mandatory notification of a husband while asserting the essential holding of Roe, that a right to an abortion is protected by the Constitution.
After the appointment of Clarence Thomas, Souter moved to the middle. By the late 1990s, Souter began to align himself more with Stephen Breyer and Ruth Bader Ginsburg, although as of 1995, he sided on more occasions with the more liberal justice, John Paul Stevens, than either Breyer or Ginsburg, both Clinton appointees. O'Connor began to move to the center. On death penalty cases, worker rights cases, criminal rights cases, and other issues, Souter began voting with the liberals in the court. So while appointed by a Republican president and thus expected to be conservative, Souter came to be considered part of the liberal wing of the court. Because of this, many conservatives view the Souter appointment as a major error on Bush's part and have intensely scrutinized future potential Republican appointees to determine whether they will be reliable conservatives. For example, after widespread speculation that President George W. Bush intended to appoint Alberto Gonzales—whose perceived views on affirmative action and abortion drew criticism—to the court, some conservative Senate staffers popularized the slogan that "Gonzales is Spanish for Souter".
An opinion article by The Wall Street Journal some ten years after the Souter nomination called Souter a "liberal jurist" and said that Rudman took "pride in recounting how he sold Mr. Souter to gullible White House Chief of Staff John Sununu as a confirmable conservative. Then they both sold the judge to President Bush, who wanted above all else to avoid a confirmation battle." Rudman wrote in his memoir that he had "suspected all along" that Souter would not "overturn activist liberal precedents." Sununu later said that he had "a lot of disappointment" in Souter's positions on the court and would have preferred him to be more like Justice Scalia.

Notable decisions

''Planned Parenthood v. Casey''

In 1992's Planned Parenthood v. Casey, Souter wrote that Roe v. Wade should not be overturned because it would 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."

''Bush v. Gore''

In 2000, Souter voted along with three other justices in Bush v. Gore to allow the presidential election recount to continue while the majority voted to end the recount. The decision allowed the declaration of Bush as the winner of the election in Florida to stand.
Jeffrey Toobin wrote, controversially, of Souter's reaction to Bush v. Gore in his 2007 book :
The above passage was disputed by Souter's longtime friend Warren Rudman. Rudman told the New Hampshire Union Leader that while Souter was discomfited by Bush v. Gore, it was not true that he had broken down into tears over it.

Relationship with other justices

Souter worked well with Sandra Day O'Connor and had a good relationship with both her and her husband during her days on the court. He generally had a good working relationship with every justice, but was particularly fond of Ruth Bader Ginsburg, and considered John Paul Stevens to be the "smartest" justice.

International recognition

Even though Souter had never traveled outside the United States during his years with the Supreme Court, he still gained significant recognition abroad. In 1995, a series of articles based on his written opinions and titled "Souter Court" was published by a Moscow legal journal, The Russian Justice. Those were followed by a book, written in Russian and bearing Souter's name in the title. Justice of the Constitutional Court of the Russian Federation Yury Danilov, reviewing the 2nd edition of the book in a Moscow English-language daily, made the following remark on Souter's position in Bush v. Gore: "In a most critical and delicate situation, David Souter had maintained the independence of his position and in this respect had become a symbol of the independence of the judiciary."

Retirement

Long before the election of President Obama, Souter had expressed a desire to leave Washington, D.C., and return to his native New Hampshire. The election of a Democratic president in 2008 made Souter more inclined to retire, but he did not want to create a situation in which there would be multiple vacancies at once. Souter apparently became satisfied that no other justices planned to retire at the end of the Supreme Court's term in June 2009. As a result, in mid-April 2009 he privately notified the White House of his intent to retire at the conclusion of that term. Souter sent Obama a retirement letter on May 1, effective at the start of the Supreme Court's 2009 summer recess. Later that day Obama made an unscheduled appearance during the daily White House press briefing to announce Souter's retirement. On May 26, 2009, Obama announced his nomination of federal appeals court judge Sonia Sotomayor. She was confirmed by the U.S. Senate on August 6.
On June 29, 2009, the last day of the Court's 2008–09 term, Chief Justice Roberts read a letter to Souter that had been signed by all eight of his colleagues as well as retired Justice Sandra Day O'Connor, thanking him for his service, and Souter read a letter to his colleagues reciprocating their good wishes.
Souter, Sandra Day O'Connor, and Anthony Kennedy are, as of 2020, the Supreme Court's only living former justices.

Post-Supreme Court career

As a Supreme Court justice with retired status, Souter remains a judge and is entitled to sit by designation on lower courts. Since his retirement from the Supreme Court, he regularly sits by designation on panels of the First Circuit Court of Appeals, based in Boston and covering Maine, Massachusetts, Puerto Rico, Rhode Island, and his native New Hampshire, generally in February or March of each year.

Personal life

Once named by The Washington Post as one of Washington's 10 Most Eligible Bachelors, Souter has never married, though he was once engaged.
In 2004, Souter was mugged while jogging between his home and the Fort Lesley J. McNair Army Base in Washington, DC. He suffered minor injuries from the event, visiting the MedStar Washington Hospital Center for treatment. The issue led to public questioning of the Supreme Court Police's security detail, which was not present at the time.
According to Jeffrey Toobin's 2007 book The Nine, Souter has a decidedly low-tech lifestyle: He writes with a fountain pen, does not use e-mail, and has no cell phone or answering machine. While he was serving on the Supreme Court, he preferred to drive back to New Hampshire for the summer where he enjoyed mountain climbing. Souter has also done his own home repairs and is known for his daily lunch of an apple and yogurt.
Former Supreme Court correspondent Linda Greenhouse wrote of Souter: "to focus on his eccentricities—his daily lunch of yogurt and an apple, core and all; the absence of a computer in his personal office—is to miss the essence of a man who in fact is perfectly suited to his job, just not to its trappings. His polite but persistent questioning of lawyers who appear before the court displays his meticulous preparation and his mastery of the case at hand and the cases relevant to it. Far from being out of touch with the modern world, he has simply refused to surrender to it control over aspects of his own life that give him deep contentment: hiking, sailing, time with old friends, reading history."
In early August 2009, Souter moved from his family farm house in Weare to a Cape Cod-style single-floor home in Hopkinton, New Hampshire, a town adjacent to the state capital of Concord. Souter told a disappointed Weare neighbor that the two-story family farmhouse was not structurally sound enough to support the thousands of books he owns and that he wished to live on one level.
Over the years, Souter has served on hospital boards and civic committees. He is a former honorary co-chair of the National Advisory Committee.