David H. Souter

David H. Souter

Description

David Hackett Souter served as the 105th justice of the U.S. Supreme Court for almost 19 years, from October 8, 1990, to June 28, 2009, replacing the great liberal stalwart, William J. Brennan, Jr., Souter's nomination by President George H. W. Bush, who had campaigned in 1988 against an unduly “activist” Supreme Court, was thought by many to herald a dramatic shift in the Supreme Court's balance of power, endangering constitutional protection of abortion under Roe v. Wade, 410 U.S. 113 (1973), and placing many of the path-breaking decisions of the Warren Court at risk. In fact, within two years of his appointment, Souter saved Roe by authoring the portion of a celebrated joint opinion for himself and Justices Sandra Day O'Connor and Anthony M. Kennedy in Planned Parenthood v. Casey, 505 U.S. 833 (1992), that invoked respect for past Supreme Court precedent, especially precedent recognizing constitutional rights, to preserve a slightly scaled-down version of Roe. Souter went on to become a major proponent of the importance of adherence to Supreme Court precedent, including Warren Court precedent, and a principal intellectual adversary of Justice Antonin Scalia in the philosophical struggle over how to interpret statutory and constitutional text. The conventional story is that President Bush, in accepting the urgings of White House chief of staff John Sununu and Senator Warren Rudman to appoint their New Hampshire neighbor, made a major political miscalculation in selecting a closet liberal who betrayed the president by increasingly voting with the Court's liberal wing. Following the conventional story, ideological conservatives have vilified Souter as a turncoat, while ideological liberals have welcomed him as a lukewarm convert. It is, however, both inaccurate and misleading to apply a political litmus test as the measure of Souter's career as a Supreme Court justice. As much as any justice in modern times, David Souter sought to avoid mixing politics and judging. In fact, Souter ran from politics. His aversion to the political spotlight bordered on eccentricity. After becoming a New Hampshire trial judge in 1978, Souter does not appear to have expressed a political idea in public. Instead, Souter self-consciously sought to forge a Supreme Court jurisprudence divorced from politics. He saw himself not as a political figure, but as a faithful agent of the legislature and the Founders, whether or not he agreed with their commands, and as a faithful steward of past judicial decisions, adhering to past precedent whether or not he would have voted the same way. Souter recognized, of course, that in many cases, the commands from text and precedent are ambiguous. In those settings, he struggled to understand the democratic purpose underlying the ambiguous text, or the judicial principle animating the ambiguous precedent, and then sought to resolve the case before him in a way that advanced that democratic purpose or judicial principle. When all else failed, he invoked nonpolitical tiebreakers, such as deference to administrative construction, the canon of constitutional avoidance, and the canon of lenity, to avoid political tie-breaking. The result is a body of Supreme Court decisions that do not fit neatly into any political category. In pursuing the twin goals of advancing democratic purpose and respecting judicial precedent, Souter sought to develop a jurisprudence of political neutrality championed by his Harvard Law School professor, Henry Hart, founder of the Legal Process School, and by Souter's two judicial idols, John Marshall Harlan, Jr., and Oliver Wendell Holmes. Souter's 19 years of intense judicial effort sought to take Henry Hart's Legal Process theories from the classroom into the real world. While the jury is out on whether he fully succeeded, if David Souter could not do it, perhaps it cannot be done. American legal theory about the art of judging is currently trapped between two extremes—a nihilism that views judges as politicians in black robes who make their minds up politically and then build a façade of legalisms to justify the outcome, and a formalism that reduces judging to a robotic exercise in reading dictionaries and deferring to law office history. David Souter sought a middle way. He believed that by using the traditional common-law tools of purposive interpretation of text, principled deference to precedent and intellectually honest history, and respect for fundamental values of adjudicative fairness, it was possible to build a stable jurisprudence that is respectful of democracy, faithful to the past, and open to the future.

Source Publication

Justices of the United States Supreme Court: Their Lives and Major Opinions

Source Editors/Authors

Leon Friedman, Fred L. Israel

Publication Date

2013

Edition

4

Volume Number

IV

David H. Souter

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