In the pantheon of Supreme Court justices, some are remembered for their fiery dissents, others for their landmark majority opinions that reshape American law. David Hackett Souter, who passed away recently, left a different kind of legacy — one defined by intellectual rigor, unpredictability, and a steadfast commitment to judicial independence that defied political expectations.
The justice died May 8 at his New Hampshire home at age 85. The cause of his death was not announced.
A Quiet Ascension to the Supreme Court
David Hackett Souter was born in 1939, in Melrose, Massachusetts (George H.W. Bush, who appointed Souter, was from a nearby town on the other side of Boston). His family relocated to New Hampshire when he was 11, settling in a farmhouse inherited by his mother. He graduated from Harvard University, initially pursuing theology before shifting to law. After earning a Rhodes scholarship, he studied jurisprudence at Oxford, returning to Harvard Law School to graduate in 1966.
Souter's legal career began in private practice before he joined the New Hampshire Attorney General's office. He began his work on the bench by serving as a judge on the state's Superior Court. In 1983, he was appointed to the New Hampshire Supreme Court, where he served until his nomination to the U.S. Court of Appeals for the First Circuit in 1990. He was appointed there, but his term was all too brief: only a few months. Little did he know, the new president, George H.W. Bush, had big plans for him.
Limited History Creates Mystery
Even before he donned robes at the highest court in the land, Justice Souter was not a man that politicians could neatly place in a box. Thirty-five years ago, when George H.W. Bush was looking to fill a vacancy on the Supreme Court, he wanted a conservative justice who would align with his own judicial philosophy. But he was also looking for a "stealth nominee" with limited public positions on controversial issues like abortion. Souter's reputation as a moderate conservative and his lack of a clear paper trail on controversial issues made him an attractive choice to avoid a contentious confirmation battle.
You could argue this strategy backfired, as Souter's limited judicial record and writings were precisely what made him unpredictable. The nominee’s testimony before the Senate Judiciary Committee left conservatives viewing him as an enigma without a clear judicial philosophy. Souter maintained an open mind on several hot-button issues, including abortion and affirmative action to address racial discrimination. He praised the liberal Justice Brennan (whose seat on the court Souter was filling). His views on judicial activism and government by the judiciary suggested a broader interpretive approach to constitutional law.
Despite concerns, Souter was confirmed as the 105th justice with only a few dissenting votes from Democrats.
A Case Called Casey
Justice Souter's early years on the Supreme Court were relatively quiet, but his ideological stance became evident during the landmark abortion case Planned Parenthood v. Casey in 1992. That case was unusual in that three justices jointly authored it. Justice Souter, along with Sandra Day O'Connor and Anthony Kennedy,reaffirmed the "essential holding" of Roe v. Wade from twenty years prior: that a woman has a constitutional right to an abortion before fetal viability. However, it also discarded the trimester framework of Roe and established the "undue burden" standard, which allowed states to enact regulations that do not place a substantial obstacle in the path of a woman seeking an abortion before viability.
Souter’s contribution to Casey was crucial in forging a moderate path that preserved the core right while allowing for more state regulation, reflecting his respect for precedent and a desire for a stable legal framework. The case was so divisive, and its final decision had such a narrow margin, that it’s fair to say without Justice Souter's vote and influence, it might have gone the other way and overturned Roe (thirty years before that eventually happened in 2022).
This decision marked his alignment with the Court's liberal wing, a position he maintained throughout his tenure. After that, Souter's dissenting opinions grew more pronounced as the Court's conservative majority advanced a federalism revolution, limiting Congress's power over state governments. His dissent in Bush v. Gore, the decision that effectively awarded the 2000 presidential election to George W. Bush, was particularly poignant. Souter's disillusionment with the Court's direction was profound, leading him to consider retirement, though he ultimately remained until President Obama's administration.
A Private Retirement and Lasting Legacy
Justice Souter retired at the end of the Court's 2008-09 term, allowing President Obama to appoint Sonia Sotomayor as his successor. In retirement, Souter returned to New Hampshire, engaging in civic activities and serving on the First Circuit Court of Appeals. He maintained his privacy, stipulating that his papers remain closed for 50 years after his death.
As SCOTUS historian Edward Lazarus put it upon Souter’s retirement announcement, “His greatest contribution, however, lies not in any isolated set of opinions but in the intellectual rigor that he brought to the more liberal wing of a deeply divided Court.” The court’s liberal justices at the time were being worn thin by Scalia and the conservatives’ suspicion of “objective” constitutional interpretation. Despite being conservative in many ways, Souter helped liberal justices show the court that they had some better arguments. Ultimately, the purportedly conservative justice helped shift the court’s overall mindset to the left.
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