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Souter, David H.

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Significance: As a replacement for William J. Brennan, Jr., the Supreme Court's leading liberal, Republican Souter was expected to move the Court in a more conservative direction. Although he voted with the conservative bloc during his freshman term, he later moderated his views, becoming more liberal than most Court observers had predicted.


An only child, David H. Souter moved with his parents to Weare, New Hampshire, when he was eleven years old. Except for his college years, he lived in Weare until his appointment to the Supreme Court. He graduated from Harvard University magna cum laude in 1961, then spent the next two years at Oxford University studying law and philosophy on a Rhodes scholarship. After receiving a degree from Harvard Law School in 1966, Souter practiced law for two years before becoming assistant attorney general of New Hampshire. He was named the state's attorney general in 1976 and served in that capacity until 1978. He then served as a judge on the state trial court for five years. In 1983, New Hampshire governor John Sununu appointed Souter to the state supreme court, on which he served for seven years. A frugal bachelor who followed a reclusive lifestyle in rural New Hampshire, he acquired the reputation of being rather elusive. President George H. W. Bush appointed Souter to the U.S. Court of Appeals for the First Circuit in 1990. On July 3, 1990, before Souter had a chance to write a single appeals court opinion, Bush nominated him as associate justice to the Supreme Court. So little was known about the relatively obscure judge from New Hampshire that he was described as a “Stealth nominee.” Souter had never published a book or even a law review article, and his two hundred opinions for the New Hampshire Supreme Court raised few constitutional questions. During his confirmation hearings before the Senate Judiciary Committee, however, Souter impressed the senators with his demeanor and knowledge of constitutional law. Defining his judicial temperament as moderate and undogmatic, he rejected the notion that the Court should adhere to the original intent of the Framers of the Constitution, and he defended the doctrine of stare decisis, or adherence to precedents, within the common law tradition. He endorsed many of the decisions of the Court under Earl Warren concerning criminal defendant rights, believing that the Court must sometimes take an active role in fashioning practical solutions to guarantee constitutional rights. The Senate confirmed his nomination by the conformable margin of ninety to nine.


Jurisprudence and Decisions

After Souter became a Supreme Court justice, his pragmatic approach to constitutional interpretation set him apart from his conservative Republican-appointed colleagues. He soon began to demonstrate a firm commitment to libertarian values of the First Amendment. Within two years, he was often joining with the more liberal members of the Court. In the highly publicized case, Planned Parenthood of Southeastern Pennsylvania v. Casey (1992), Souter was part of the five-member majority that reaffirmed the central holding of Roe v. Wade (1973), recognizing a woman's right to terminate an unwanted pregnancy. In addition to the importance of precedents, Souter explicitly located this right to privacy in a substantive due process reading of the Fourteenth Amendment. Concurring in Washington v. Glucksberg (1997), when the Court upheld laws banning physician-assisted suicides, Souter emphasized that all right-to-die cases should be grounded in the doctrine of substantive due process, which protects individuals from “arbitrary restraints” by government. Souter again applied the substantive due process doctrine in Lawrence v. Texas (2003), joining the majority to strike down state laws that criminalized homosexual practices among consenting adults. Souter's method frequently was to balance competing constitutional interests. In 1995, he recognized that private organizers of an Irish parade in Boston had rights of expressive association that precluded the state from forcing them to allow participation by gays and lesbians. However, in Boy Scouts of America v. Dale (2000), he argued that this principle did not permit the Boy Scouts to ignore a state law and discriminate against gays, especially since the organization had not explicitly proclaimed its institutional opposition to homosexuality. In the many 5-4 votes of the later years of the Rehnquist Court, Souter was almost always in agreement with the liberals. Consistently favoring a high wall between religion and government, he opposed the use of tax-supported vouchers in parochial schools in Zelman v. Simmons-Harris (2002), arguing that the program allowed tax money to fund religious indoctrination. He apparently never opposed any affirmative action program; thus, in Adarand Constructors v. Peña (1995) he opposed evaluating such programs by the strict scrutiny standard. In Grutter v. Bollinger (2003), he agreed with the majority's view that the goal of racial diversity in universities provides an adequate rationale to allow preferences based on race. In 2002, he joined a six-member majority to find that execution of persons with mental disabilities violated the Eighth Amendment, and in Roper v. Simmons (2005), he joined a five-member majority to ban executions of minors. Souter also disagreed with the emphasis that the five more conservative justices gave to states’ rights in cases such as Kelo v. City of New London (2005). In 2000, Justice Souter found the dispute about the election results in Florida to be quite frustrating. He dissented in Bush v. Gore, when the five more conservative justices ordered an end to the recount of votes, thereby ensuring George W. Bush's victory. Although he agreed with the majority's view that the process of the recount was unconstitutional, he argued that the Court had no authority to intervene and that Florida's high court have should have been given more time to work out a constitutional way to supervise a recount.



Further Reading

  • Fliter, John A. “The Jurisprudential Evolution of Justice David Souter.” Southeastern Political Review 26 (December, 1998): 725-754.
  • Fliter, John A. “Keeping the Faith: Justice David Souter and the First Amendment Religion Clauses.” Journal of Church and State 40 (Spring, 1998): 387-409.
  • Hensley, Thomas R. The Rehnquist Court: Justices, Rulings, and Legacy. Santa Barbara, Calif.: ABC-Clio, 2006.
  • Tushnet, Mark. A Court Divided: The Rehnquist Court and the Future of Constitutional Law. New York: W. W. Norton, 2005
  • Yarbrough, Tinsley E. David Hackett Souter: Traditional Republican on the Rehnquist Court. New York: Oxford University Press, 2005.