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 Concord, N.H. He was 85.
His death was announced on Friday morning by the Supreme Court, which did not cite a cause.
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 2008-2009 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 his second year on the Supreme Court, Justice Souter had acquired the label that would stick for the remainder of his tenure. He was the justice who surprised the president 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 the 1990s 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.
But he did not take the hint.
“Courts must accept their own responsibility for making a just society,” Justice Souter replied, to the senator’s evident consternation. Elaborating, he said that both nature and “constitutional responsibility abhor a vacuum” and that “if there is, in fact, a profound social problem, if the Constitution speaks to that, and if the other branches of government do not deal with it, ultimately it does and must land before the bench of the judiciary.”
The nominee also raised alarms among conservatives with his effusive praise for the man he was named to replace, Justice William J. Brennan Jr., the court’s liberal leader who had abruptly retired on July 20 at the age of 84 after suffering a stroke. Justice Brennan would be remembered “as one of the most fearlessly principled guardians of the American Constitution that it has ever had and ever will have,” Judge Souter predicted.
Despite their growing qualms, Senate Republicans did their duty for President George Bush. David Souter was confirmed as the 105th justice on Oct. 2, 1990, by a vote of 90 to 9. All the negative votes came from Democrats.
A Low-Profile Nominee
Judge Souter was little known even in Washington legal circles when Mr. Bush introduced him to the country as his first Supreme Court nominee, in a late-afternoon television appearance on July 23, 1990. He was a 50-year-old Harvard Law School graduate and former Rhodes scholar who had been confirmed to a federal judgeship only two months earlier. He had barely moved into his chambers at the federal appeals court in Boston.
For 12 years before that, he had been a state judge in New Hampshire, where, as far as anyone could tell, he had not given a speech, written an article or taken a position on any of the hot-button issues that those who watched the Supreme Court cared most about. A bachelor, he still lived in the house where he grew up, a modest farmhouse in the Concord, N.H., suburb of Weare. It had belonged to his maternal grandparents and in 1990 was valued at $150,000 (about $370,000 in today’s currency).
Despite his nearly nonexistent national profile, Judge Souter had a powerful ally in Washington — not, as many supposed, New Hampshire’s conservative former governor, John H. Sununu, then serving as the White House chief of staff, but rather a moderate Republican senator from New Hampshire, Warren B. Rudman. As New Hampshire’s attorney general, Mr. Rudman had become a mentor to Mr. Souter, then a young lawyer in his office, making him his deputy and eventually pushing him forward as his successor as attorney general, an appointed post in New Hampshire.
It was Mr. Rudman’s sponsorship that later placed his protégé on the United States Court of Appeals for the First Circuit and that led, quite directly, during the frantic weekend at the White House that followed Justice Brennan’s unexpected midsummer retirement, to the Supreme Court selection. Strongly in Judge Souter’s favor was the fact he had so recently been vetted within the administration and confirmed unanimously by the Senate to the appeals court post.
Mr. Sununu publicly proclaimed the selection a “home run,” but he had reason to know that the nominee, with whom he had only a distant relationship, was no movement conservative. “We don’t discuss politics because he doesn’t know about politics,” Mr. Rudman said of his friend on the day of his nomination. Mr. Rudman, who died in 2012, would tell anyone within earshot that helping David Souter get a seat on the Supreme Court was the proudest accomplishment of his career.
Those who did not pay much attention to Judge Souter during the brief confirmation process missed their chance, because the new justice embraced the privacy that the court offered and all but disappeared within it. He kept his off-the-bench activities to a minimum. He turned down all the opportunities for foreign travel that other justices accepted eagerly; his two years as a Rhodes scholar at Magdalen College, Oxford, had evidently slaked rather than whetted his appetite for foreign adventure, because once he came home to enroll at Harvard Law School, he rarely left the country again. No one who had Boston needed Paris, he would say.
He gave few speeches, politely rejecting all the invitations that came his way to teach, participate in seminars or give academic lectures. He rented a small apartment not far from the court, furnished it sparingly, and threw himself into his work. His regular lunch, eaten at his desk, consisted of yogurt and an apple, core and all. After an evening working in his chambers, he ran for exercise around the track at a nearby Army base. In 2004, he was mugged while jogging in his neighborhood, an apparently random crime that was never solved. The mugging occurred on a Friday night. Justice Souter was in his chambers, working as usual, the next morning.
His ascetic lifestyle was unaffected by the fact that over the years, through a series of mergers involving a bank in which he held stock, he became a rich man, among the wealthiest of the justices. In 2007, he valued his stock in Chittenden Corporation — a financial services company based in Vermont that was the successor to the bank in which he had originally invested $160,000 — at between $5 million and $25 million. (The financial disclosure form lists assets according to very wide ranges.) The stock paid him dividends of between $100,000 and $1 million a year.
The Washington social scene held absolutely no appeal. As soon as the court recessed for vacation, Justice Souter promptly repaired to New Hampshire, where he relaxed and unwound from the term by seeing old friends, hiking in the White Mountains, sailing and reading. He maintained chambers at the federal courthouse in Concord. Late every September, he put a few belongings in his car and drove alone back to Washington. It was a trip he made with increasing reluctance each year, sustained by visions of eventual retirement to his beloved New Hampshire.
So Justice Souter remained an enigma. “Observers disagree,” Prof. Mark Tushnet of Harvard Law School wrote in 2005, “about whether David Souter is a man of the 18th century set down in the 21st century or merely a man of the 19th century.” But Professor Tushnet went on to note that this was, at least in part, an image that Justice Souter cultivated to guard his privacy.
“Everyone who knew him knew that he was a sophisticated, well-read, and urbane man, hardly a hayseed from New Hampshire,” Professor Tushnet said, as he had some reason to know; his daughter, Rebecca, spent a year as one of the justice’s law clerks.
Justice Souter inspired fierce, almost protective, affection and loyalty from his friends and former clerks. Academic appraisals were less generous. His name was on so few significant opinions and his profile at the court was so low that after his first few years, legal academia essentially stopped paying attention to him. That was most likely a source of relief to the justice.
His career did inspire one biography, “David Hackett Souter: Traditional Republican on the Rehnquist Court,” in 2005. Neither Justice Souter nor any of his law clerks cooperated with the author, Tinsley E. Yarbrough, a political science professor at East Carolina University in Greenville, N.C. A generally admiring book, it made no pretense of getting below the surface.
If his footprints through the court’s various doctrinal fields were not particularly evident, there was no dispute about the fact that his vote mattered. Even as the court became more conservative and polarized, liberals managed to eke out some important victories, most by votes of 5 to 4, which would not have been possible had he turned out to be the justice that many conservatives assumed him to be at the time of his nomination.
A Storied Lineage
David Hackett Souter was born Sept. 17, 1939, in Melrose, Mass., where his father, Joseph, was an officer in a bank. When David was 11, the family moved from Melrose, his father’s hometown, to the farmhouse in Weare, N.H., that his mother, Helen Adams (Hackett) Souter, had inherited from her parents.
An only child, David was descended on his father’s side from Scottish mill workers and tradesmen who immigrated to the United States in the 1850s. On his mother’s side, he traced his lineage to the Mayflower and shared ancestors with several United States presidents, including Franklin D. Roosevelt and the Bushes. While he was known as Soutie to his classmates at Concord High School, during his undergraduate years at Harvard he stressed his old New England roots and sometimes called himself Hackett.
He graduated second in his high school class of about 180 students; fellow members of the class of 1957 voted him the male student “most likely to succeed,” as well as the “most sophisticated” and “most literary.” Most graduates of Concord High School at the time did not go on to college, but David entered Harvard, intending to pursue a degree in theology. He soon changed his career goal to law, graduating Phi Beta Kappa in the class of 1961 and becoming one of 32 American students that year to win the prestigious Rhodes scholarship for two years of study at Oxford. He studied jurisprudence, earning top honors.
He did not excel similarly at Harvard Law School, and he was not chosen for the law review. During his second and third years at law school, he worked as a resident adviser in one of the freshman dormitories in Harvard Yard. After graduation in 1966, he went back to Concord to practice law at a small firm, Orr and Reno. Two years later, bored by handling a few trials and an array of civil matters, he joined the state attorney general’s office as one of 20 staff attorneys, a move to the public sector that was to define the rest of his life.
Warren Rudman became attorney general in 1970. The two men bonded quickly, with Mr. Rudman, nine years the elder, almost becoming the big brother that Mr. Souter never had. The attorney general chose the young lawyer as his deputy, and, when his own term expired in 1976, persuaded Meldrim Thomson Jr., the state’s conservative Republican governor, to make Mr. Souter the next attorney general, at the age of 36. Two years later, the governor named him to the Superior Court, the state’s trial court. While serving there, Judge Souter became increasingly involved in community affairs, spending five years as chairman of the Concord Hospital’s board of trustees.
A new governor, John Sununu, elevated him to the State Supreme Court in 1983. The five-member court offered an uninspiring menu of commercial disputes and other issues of state law, and Justice Souter’s record there consequently offered little raw material to scrutinize when he was named seven years later to the United States Supreme Court. He became increasingly restless on the state court, particularly after Mr. Sununu passed him over for the chief justiceship in 1986.
So he was happy to accept the nomination his friend Senator Rudman engineered for him to the United States Court of Appeals for the First Circuit, which hears appeals from the federal courts in Maine, New Hampshire, Massachusetts, Rhode Island and Puerto Rico. After his unanimous Senate confirmation, the circuit’s chief judge and a future Supreme Court associate justice himself, Stephen G. Breyer, swore him in on May 25, 1990. Judge Souter had participated in only a few cases and had not written an opinion by the time the Supreme Court nomination came his way two months later.
Summoned to meet with President Bush, Judge Souter flew to Washington on the night of July 22, a Sunday. He assumed he would go home empty-handed the next day and did not bother packing an extra suit. He stayed nearly a week. Reporters and photographers followed his every move as he paid the obligatory courtesy calls on members of the Senate. “Judge Souter, how does it feel to be plucked from obscurity?” one reporter shouted across a senator’s outer office.
“I didn’t realize I was that obscure,” the former state attorney general and state justice answered with a wry expression. He returned home on Friday, proclaiming it to have been the worst week of his life.
Confirmation hearings would not take place until after the Senate’s August recess. That left weeks of frenzied speculation about whether the nominee would or would not vote to overturn the court’s 1973 abortion precedent, Roe v. Wade. There was no abortion case on the court’s docket, but with Justice Brennan’s retirement, the margin of support for the constitutional right to abortion appeared to have shrunk to the vanishing point or beyond. The nominee, of course, could be expected to refuse to answer a direct question about how he would vote in a future case. Some liberal groups feared the worst, with one going so far as to plaster telephone poles near the Capitol with posters bearing the slogan, “Stop Souter or Women Will Die.”
During his confirmation hearing, Judge Souter said he had no agenda on abortion and had not made a decision on how he would vote if the future of Roe v. Wade was put before him. But his surprisingly expansive constitutional views, and his expression of strong support for adhering to precedent, left liberals reassured, if warily so. Prof. Walter Dellinger of Duke University Law School, a liberal and a strong abortion rights supporter, proclaimed Judge Souter “the most intellectually impressive nominee I’ve ever seen.”
Justice Souter’s first term on the court was a fairly quiet one. But the future of Roe v. Wade arrived at the court’s doorstep midway through the next term, sooner than many people had expected. By then, another abortion rights supporter, Justice Thurgood Marshall, had retired, and was replaced by Justice Clarence Thomas. The new case, Planned Parenthood v. Casey, was argued on April 22, 1992, and it was widely anticipated that Roe v. Wade would be formally or functionally overturned.
But the result was just the opposite. Justice Souter, joined by two other Republican-appointed justices, Sandra Day O’Connor and Anthony M. Kennedy, who had earlier both expressed strong doubts about Roe v. Wade, collaborated to produce a highly unusual joint opinion that reaffirmed the constitutional right to abortion. With Justices Harry A. Blackmun and John Paul Stevens joining the central parts of the opinion, the vote was 5 to 4.
The trio announced the result from the bench on the final day of the term, June 29, 1992, to a spellbound courtroom audience. They read in sequence, each summarizing the part of the opinion that he or she had contributed. Justice Souter’s portion emphasized stare decisis, Latin for “to stand by what has been decided,” or adherence to precedent. The court was under political attack for its abortion ruling, he said; the justices well knew that the decision was unpopular in some quarters. Yet many others had accepted it and relied on it; indeed, “The ability of women to participate equally in the economic and social life of the nation has been facilitated by their ability to control their reproductive lives.”
So “to overrule Roe’s essential holding under the existing circumstances,” Justice Souter continued, would come “at the cost of both profound and unnecessary damage to the court’s legitimacy, and to the nation’s commitment to the rule of law.”
It was a stunning moment that inflamed the political right and appeared to have a transformative effect on Justice Souter. While the two other members of the trio, Justices O’Connor and Kennedy, drifted back and forth over the years across the court’s ideological divide, he remained firmly anchored to the court’s liberal wing, which even grew for a time when Justice Byron R. White, an opponent of Roe v. Wade, retired the next year and was replaced by Justice Ruth Bader Ginsburg.
The Supreme Court overturned Roe v. Wade in 2022 in Dobbs v. Jackson Women’s Health Organization.
The Strong Dissenter
Justice Souter’s alienation from the conservatives grew as Chief Justice Rehnquist launched his federalism revolution in the mid-1990s: In a series of 5-to-4 rulings, the court limited the ability of Congress to make federal laws fully applicable to state governments. Justice Souter wrote some strong dissenting opinions from these decisions, as well as from rulings that opened the door to a greater accommodation of religion in public life.
His most bitter moment as a dissenter undoubtedly came in Bush v. Gore, the 5-to-4 decision that ended the disputed Florida recount and effectively declared George W. Bush the winner of the 2000 presidential election. He watched, appalled, as the conservatives accepted jurisdiction of the appeal filed by lawyers for Governor George W. Bush of Texas, who was ahead by a hair in the battle for Florida’s decisive 25 electoral votes and who wanted at all costs to stop the recount that the Florida Supreme Court had ordered at the behest of the Democratic candidate, Vice President Al Gore.
With a Dec. 12 deadline looming for the selection of electors, and a Dec. 18 date set for the Electoral College to meet, events at the court rapidly intensified. On Dec. 9, the justices voted 5-to-4 to issue a stay of the statewide recount that had begun hours earlier. The case was argued on the morning of Dec. 11 and decided in Mr. Bush’s favor late on the night of Dec. 12.
All four of the dissenters, Justices Ginsburg, Breyer, Souter and Stevens, wrote separate dissenting opinions while also expressing support for one another’s. Justice Souter drafted his dissent in longhand on a legal pad. In contrast to the opinion by Justice Stevens, who all but accused the majority of a cynical political act that would destroy “the nation’s confidence in the judge as an impartial guardian of the rule of law,” Justice Souter’s tone was mild. The court should never have taken the case, he said; “our customary respect for state interpretations of state law counsels against rejection of the Florida court’s determination in this case.”
But beneath that controlled surface, Justice Souter was “shattered,” Jeffrey Toobin wrote in his book on the court, “The Nine,” published in 2007. The justice’s disillusionment was such, Mr. Toobin wrote, that he could not put the episode behind him as the other dissenters managed to do. He seriously considered leaving the court. Persuaded by his friends to stay, Mr. Toobin wrote, Justice Souter never felt the same about the court or his job there. “There were times when David Souter thought of Bush v. Gore and wept,” Mr. Toobin wrote.
His mood gradually improved, but the court’s 2006-2007 term brought another low when a conservative majority under Chief Justice John G. Roberts Jr., strengthened by Justice O’Connor’s retirement and her replacement, Justice Samuel A. Alito Jr., prevailed in a series of important cases. In one relatively minor case, Bowles v. Russell, the 5-to-4 majority ruled that a prison inmate’s appeal was filed too late, even though it was safely within the deadline that a federal judge had mistakenly given him. Justice Souter’s dissent, on behalf of his usual allies, appeared to be addressing broader and deeper issues than the one this single case presented. “It is intolerable for the judicial system to treat people this way,” he said.
He told friends over the years that he wanted to retire but did not want to create another vacancy for President Bush to fill. He sent his retirement letter to President Obama on May 1, 2009, mere months after the new president’s inauguration.
As a retired justice, he sat for several weeks every year with his old court, the First Circuit in Boston. He kept chambers there and in Concord, N.H. He involved himself in New Hampshire life, serving on a state commission to improve civics education, a cause to which he had been recruited by his colleague, Justice O’Connor, whose retirement preceded his by three years. But he made his desire for privacy unarguably clear by giving his papers to the New Hampshire State Historical Society with the stipulation that they remain closed for 50 years after his death.
When he received an honorary degree from his alma mater, Harvard, his speech was a sober and obviously heartfelt lesson in constitutional interpretation. The Constitution embodied not just one idea but a “pantheon of values,” he said, and “the notion that all of constitutional law lies there in the Constitution waiting for a judge to read it” was “simplistic.” Such an interpretive approach “diminishes us,” he said.
There are no immediate survivors. Justice Souter’s father died in 1976. His mother, with whom he shared a home for years and whom he later visited regularly at her retirement home in Concord, lived long enough to see her only child reach the heights of the legal profession. She died in 1995 at the age of 87.
After he retired, Justice Souter sold the family farmhouse and moved to a substantial in-town house in Concord. The reason, he explained, was his large book collection, which the old farmhouse could neither hold nor structurally support. Reading history remained a cherished pastime. “History,” he once explained, “provides an antidote to cynicism about the past.”
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