David Hackett Souter

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(b. Melrose, Mass., 17 Sept. 1939), associate justice, 1990–. Nominated by President George H. W. Bush just three days after the retirement of Justice William J. Brennan, David Souter is a unique personality often compared to an eighteenth‐century New England man of letters. At the time of his nomination he was more of an enigma to a national audience than nearly any other nominee over the last generation. His only national service had been a three‐month stint, immediately before his nomination, on the United States Court of Appeals for the First Circuit. Before that, Souter's entire professional career, in both private and public practice, had been spent in New Hampshire.

But Souter's life had been dominated by an almost romantic passion for the law, and this commitment, along with his intellectual capacity and character, eventually brought him to national attention. Born in Melrose, Massachusetts, Souter and his family lived, from the time he was eleven, in what had been his grandparents' farmhouse in Weare, New Hampshire, a small town in rural New England. Souter went to Harvard University, where he majored in philosophy and expressed his emerging engagement with legal thought in a senior honors thesis on the legal philosophy of Oliver Wendell Holmes, Jr. Graduating magna cum laude in 1961, Souter went on to study jurisprudence for two years on a Rhodes scholarship at Magdalen College. He then returned to Harvard for law school, where he graduated in 1966. Souter began his professional career in New Hampshire, where for two years he worked in a general private practice at a prominent New Hampshire firm. Already described by colleagues as “a natural judge,” Souter was soon offered a position in the New Hampshire attorney general's office in 1968. He began in the criminal division, where he handled both trials and appeals. Three years later, Warren B. Rudman became the state's attorney general and made Souter his deputy. In the five years Souter served as deputy attorney general, he and Rudman, who later became a United States Senator and one of Souter's most important supporters, developed what become a long‐standing relationship. When Rudman stepped down in 1976 from the attorney general's office, Governor Meldrin Thompson appointed Souter to take Rudman's place. One of the major prosecutions that Souter oversaw involved more than one thousand protestors who sought to shut down the Seabrook nuclear power plant by occupying it.

Once again, Souter quickly was asked to assume new responsibilities. Two years after becoming attorney general, he was appointed associate justice of the state's trial court of general jurisdiction, the New Hampshire Superior Court. The position made him familiar with criminal and civil cases of every sort throughout the state, for justices of the state's trial court ride circuit and sit in every county of the state. Souter developed a strong interest in the jury system and developed a practice of meeting with jurors after a case to talk about their experience. Five years later, in 1978, Governor John Sununu appointed Souter to the Supreme Court of New Hampshire. There he developed a reputation as a scholarly judge, one deeply steeped in precedent and the historical development of legal doctrine. He was also viewed as being independent minded. In 1990, John Sununu, who was then serving as George H. W. Bush's chief of staff, recommended Souter for an opening on the First Circuit. When Justice Brennan's seat opened up three months after Souter had begun on the First Circuit, Senator Rudman played a role in urging President Bush to nominate him for Brennan's seat.

On the Court, Justice Souter's distinctive personality and vision of law is evident in his opinions. Stylistically, Souter's opinions reflect a personal voice and pen more than the opinions of many other current justices. His opinions often contain arcane phrases and embedded clauses within embedded clauses. In contrast to the more institutional feel of many opinions, Souter's scholarly opinions convey a sense of personal authorship and commitment; they also express a seeming love for the craft of writing. In method, his decisions reflect the influence of the common‐law pragmatism characteristic of Holmes, of state court judges, and of the Harvard Law School during Souter's studies there. Thus, one of his most well‐known opinions is a concurrence in Washington v. Glucksberg (1997), in which the Court held that state laws banning assisted suicide did not unconstitutionally infringe the liberty and privacy interests of individuals. Reasoning about the competing interests, Souter issued what stands as a more general statement of his judicial philosophy:

It is here that the value of common‐law method becomes apparent, for the usual thinking of the common law is suspicious of the all‐or‐nothing analysis that tends to produce legal petrification instead of an evolving boundary between the domains of old principles. Common‐law method tends to pay respect instead to detail, seeking to understand old principles afresh by new examples and new counterexamples. The ‘tradition is a living thing,’ Poe, 367 U.S. at 542 (Harlan, J., dissenting), albeit one that moves by moderate steps carefully taken. (p. 770)

Respect for the continuity of the legal tradition, yet a belief that law should constantly evolve; moderate steps, carefully taken; suspicion of broad all‐or‐nothing legal approaches; honest acknowledgement of the forceful arguments against his position: all these characterize Souter's approach to every area of law the Court confronts.

Souter has written major opinions on issues of religion, the First Amendment, privacy, the jury system, federalism, race, and issues regarding the structure of democratic politics. Many of these opinions reflect an institutional modesty about the Court's role. They also express a view that law should depend on underlying empirical facts and should change when those empirical realities shift. Thus, in the campaign‐finance area, Souter wrote in Nixon v. Shrink Missouri PAC (2000) that courts should be deferential to legislative judgments about the need for campaign‐finance regulations, as long as those judgments have a plausible basis. That approach became an important foundation a few years later for the Court's 5‐4 decision, which Souter joined, to uphold the constitutionality of the Bipartisan Campaign Reform Act of 2002 in McConnell v. Federal Election Commission (2003). Similarly, Souter has strongly opposed, in dissenting opinions, the view that the Court should enforce federalism‐based limits on Congress's enumerated powers or the view that the Court should limit the extent to which race can be taken into account in the design of election districts. Steeped in historical analysis, Souter's consistent dissents on these issues, such as in Alden v. Maine (1999), have urged that the Court has taken on too aggressive a role in limiting the actions of the political branches. At the same time, Souter views the Constitution as requiring a relatively open and competitive political process. Thus, in both dissents and majority opinions, he has concluded that state laws limiting opportunities for third parties are unconstitutional. Politics seems a particular fascination for Souter, and he brings a special intensity to his opinions—often dissenting ones—on issues such as the Voting Rights Act, where race and politics intersect. While Souter has called the race‐conscious districting requirements of the act a “second best” approach that is justifiable only in a world in which whites and blacks vote quite differently (Johnson v. DeGrandy, 1994), he has written forceful dissents when the Court has limited the act's scope.

In the area of religion, Souter has consistently favored the strongest separation between religion and government. He writes frequently in the area, with opinions informed by a profound historical sensibility about the legal and political evolution of the boundary between religion and the state. In the First Amendment area, Souter authored an important opinion for the Court holding that private groups have expressive associational rights that preclude the state from forcing them to accept members with conflicting viewpoints (Hurley v. Irish‐American Gay, Lesbian, and Bisexual Group of Boston, 1995), while also concluding (in dissent) that this principle did not extend so far as to permit the Boy Scouts to exclude gay members.

Souter has generally resisted moves by the Supreme Court to enhance the rights of property owners through strengthening the regulatory takings doctrine under the Fifth Amendment. Yet in United States v.Winstar Corporation (1996) Souter, writing for the Court, found that the federal government had breached contracts with financial institutions to accord them special accounting treatment in connection with their acquisitions of failing thrift banks. He ruled that the government was liable for damages when it infringed a contractual arrangement by altering regulatory policy.

Souter's votes on two of the most momentous issues to have confronted the Court during his tenure thus far are particularly characteristic. In the disputed presidential election of 2000, Souter agreed with the majority of the Court that Florida's recount process was unconstitutional, but agreed with the dissent that the Court was without legal authority when it decided to terminate the recount process in Bush v. Gore (2000). Souter, the former state supreme court justice, would instead have given the Florida Supreme Court more opportunity to supervise a constitutional recount process. In searching for a middle ground between terminating the election outright and finding no constitutional problem at all in Florida's recount process, Souter displayed in a dramatic setting the independent‐mindedness, restrained view of the Court's role, and search for intermediate solutions typical of his work. Similarly, he coauthored, along with Justices Sandra Day O'Connor and Anthony Kennedy, the well‐known joint opinion in Planned Parenthood of Southeastern Pennsylvania v. Casey (1992), which reaffirmed Roe v. Wade's (1973) constitutional protection of a woman's right to terminate a pregnancy. Casey rested in significant part on a strong justification of the values associated with adherence to precedent that is consistent with Souter's views in other contexts.

Souter is no longer the enigma he was at the start. He is a scholarly, intellectual judge, steeped in legal history and the common‐law tradition, modest about the uses of judicial power, respectful of the decisions judges before him have reached. Well‐regarded and well‐liked on the Court for his unassuming and charming personal style, he has carved out an important role since 1990 at the center of a Court that contains sharp differences of ideology and approach.

Bibliography

• Edward DeGrazia, David Hackett Souter, in The Justices of the Supreme Court, vol. 5, edited by Leon Friedman and Fred L. Israel (1995), pp. 1806–1828.
• John J. Sullivan, David H. Souter, in The Supreme Court Justices: Illustrated Biographies, 1789–1995, 2d ed., edited by Clare Cushman (1995), pp. 521–525

— Richard H. Pildes

David H. Souter (born 1939), a New Hampshire state attorney and state supreme court judge, was appointed to the U.S. Supreme Court in the fall of 1990 as the 105th justice in the nation's history.

David H. Souter was born on September 17, 1939, in Melrose, Massachusetts. At age 11, Souter and his parents moved to Weare, New Hampshire, near Concord, where his father, a banker, could lead a slower-paced life necessitated by a heart condition. Souter was a lifelong bachelor and lived with his widowed mother until she entered a nursing home several years before his nomination to the U.S. Supreme Court. He was still living in the family's farmhouse in Weare when President George Bush plucked him from obscurity to place him on the nation's highest court in 1990.

By educational background, Souter seemed a worthy candidate for the U.S. Supreme Court. He attended public elementary schools and Concord High School, where he was elected president of the National Honor Society and was voted "most literary," "most sophisticated," and, prophetically, "most likely to succeed." He entered Harvard College in 1957 and majored in philosophy, writing his senior honors thesis on the jurisprudence of Justice Oliver Wendell Holmes. After graduating magna cum laude and Phi Beta Kappa, he won a Rhodes scholarship to attend Magdelan College at Oxford University, where he studied law and philosophy for two years. In 1963 he enrolled in Harvard Law School, from which he received his LL.B. degree where he reportedly did well, but failed to make the law review.

Graduating from Harvard Law in 1966, Souter returned home to Weare and began his legal career in the Concord law firm of Orr & Rena. He found private practice unsuited to his tastes, however, and turned to the public sector. In 1968 he joined the staff of the New Hampshire attorney general. Warren Rudman, who was destined to become a senator from the Granite State and who would play a key role in supporting Souter's eventual U.S. Supreme Court nomination, became attorney general of New Hampshire in 1970 and promoted Souter to be his top aide. Rudman resigned as attorney general in 1976 and persuaded Governor Meldrim Thomson to name Souter as his successor.

In his two-year service as state attorney general, from 1976 to 1978, Souter personally argued several controversial religion cases. In one, he defended Governor Thompson's desire to fly the American and state flags at half-staff on Good Friday. He also defended the state's attempts to prosecute residents who for religious reasons covered up the state motto - "Live Free or Die" - on their license plates. The state was unsuccessful in both cases.

Nevertheless, Souter's service was rewarded by a judicial appointment to the state superior court in 1978. He served there for five years before Governor John Sununu, who would become President Bush's chief of staff, named him to the New Hampshire Supreme Court in 1983. In the spring of 1990 President Bush nominated Souter to the U.S. Court of Appeals for the First Circuit in Boston. He had yet to write an opinion for that court, or indeed even be assigned an office, when the president made his surprise announcement nominating him to the U.S. Supreme Court on July 23, 1990.

Justice William Brennan's retirement from the seat that Souter was named to fill had been equally surprising. Although Brennan was 84, he had remained a vigorous member of the Court through its 1989-1990 term. Indeed, he had fashioned slim, but victorious, majorities for the dwindling liberal bloc in his last contentious cases involving flag-burning and affirmative action. Yet Justice Brennan had suffered a slight stroke early in the summer of 1990 and his physician urged him to retire. He did so reluctantly, citing the incompatibility of the burdens of the Court with his fragile health.

President Bush vowed to make quick work of the selection process for Brennan's replacement. The administration had compiled a list of potential nominees during Bush's first year in office, and his advisers turned to it as deliberations began immediately after Brennan sent his letter of resignation to the White House. Within three days Bush had his man. He passed over the runner-up, Judge Edith Jones of the Fifth Circuit Court of Appeals in Texas, for the less-well-known Souter. In the aftermath of the denial of Judge Bork's nomination to the high court because of his staunchly conservative paper trail, Souter's very obscurity was the overwhelming deciding factor in his favor.

Yet Souter's past did contain several clues to his jurisprudence. In a 1986 dissenting opinion on the New Hampshire Supreme Court, Souter wrote that "the court's interpretive task is to determine the meaning of [constitutional language] as it was understood when the framers proposed it." On one of the most controversial issues of the day - abortion - Souter also expressed a restraintist position toward procedural aspects of judging, even if his personal and professional views on the topic were unknown. As a superior-court judge in 1981, Souter wrote a letter to the state legislature to argue for the rejection of a provision of a bill that would have required teenagers seeking abortions to obtain permission from a judge if they could not get their parents' consent. Souter maintained that the provision "would express a decision by society, speaking through the legislature, to leave it to individual judges … to make fundamental moral decisions about the interests of other people without any standards to guide the individual judge…."

Souter's nomination cleared the Senate Judiciary Committee by a vote of 13 to 1. The full Senate was equally favorable, approving Souter by a vote of 90 to 9. The new justice was sworn in October 9, 1990, and began work on the fall term of the Court almost immediately. (A second new justice took a seat on the Supreme Court for the 1991 fall term when Justice Thurgood Marshall resigned because of failing health and was replaced by Clarence Thomas).

As a Justice, Souter focused on legal process in many of his decisions. In his dissent of Missouri v. Jenkinshe began with: "The Court's process of orderly adjudication has broken down in this case," Some critics claimed that his focus on process was an attempt to flee substance. Important opinions written by Souter included issues related to free speech and separation of church and state in Rosenberger v. University of Virginia (free speech and a student run newspaper) and Lee v. Weissman (separation of church and state).

Further Reading

Because of David Souter's relatively obscure background, there was no major studies of his life and career. Time magazine (August 5, 1990) and the New York Times (July 25, 1990) offered detailed journalistic analyses of Souter. For the voting in the Judiciary Committee and later the full Senate see the Washington Post ( September 27 and October 2, 1990). Other articles on Souter have appeared in Rocky Mountain News July 25, 1993) and The Courier-Journal, Louisville, KY (March 21, 1993). Reviews of Souter's performance as a Justice can be found in legal and political journals such as Almanac of the Federal Judiciary and Policy Review.

• Born: Sept. 17, 1939, Melrose, Mass.
• Education: Harvard College, A.B., 1961; Harvard Law School, LL.B., 1965
• Previous government service: attorney general of New Hampshire, 1976–78; superior judge, New Hampshire, 1978–83; justice, New Hampshire Supreme Court, 1983–90; judge, Federal Court of Appeals of the First Circuit, 1990
• Appointed by President George Bush July 25, 1990; replaced Justice William Brennan, who retired
• Supreme Court term: confirmed by the Senate Oct. 2, 1990, by a vote of 90–9

David Souter was President George Bush's first appointment to the Supreme Court. President Bush was determined to nominate a noncontroversial person who would be readily confirmed by the Senate, without conflict and acrimony. The President also wanted a justice who favored judicial restraint and policy-making only by the legislative and the executive branches of government. Souter clearly was the President's man. He had neither written nor publicly said anything controversial enough that could be used to deny his confirmation. Further, he seemed to agree with the President about judicial selfrestraint in interpreting the Constitution.

During his confirmation hearings before the Senate Judiciary Committee, Souter performed cautiously and competently. He was confirmed by the Senate and took his seat as the 105th justice of the U.S. Supreme Court.

During his first few years on the Court, Justice Souter has been a capable justice. He has tended to side with the Court's conservative majority, but he clearly has demonstrated intellectual flexibility and independence. For example, he joined the Court's 1993 decision in Church of the Lukumi Babalu Aye v. City of Hialeah, which struck down a local law banning animal sacrifice as part of a religious ritual. Souter wrote a concurring opinion that protected the 1st Amendment right of free exercise of religion. Souter's concurring opinion, however, was more strongly and broadly stated than the opinion of the Court, written by Justice Anthony Kennedy. Justice Souter has also been a frequent dissenter from the Court majority. For example, he joined with liberals on the Court in dissenting opinions against decisions that restricted the use of race as a factor in drawing boundaries for congressional districts, as in Bush v. Vera (1996).

David Hackett Souter was appointed to the U.S. Supreme Court on July 25, 1990, by President George Bush. Chosen by the Bush administration because of his conservative judicial style, Souter has proven to be a moderate justice whose personality and temperament have enabled him to build a centrist coalition that has garnered support from the Court's ideological extremes.

Souter was born on September 17, 1939, in Melrose, Massachusetts, six miles north of Boston. The only son of Joseph Souter, a bank manager, and Helen Souter, a gift store clerk, the future associate justice is remembered by his childhood friends as an intense, intelligent, and family-oriented person who was endowed with a sharp wit, but no athletic ability. At age eleven Souter and his parents moved to a ten-acre farm in the rural community of East Weare, New Hampshire.

In 1957 Souter graduated second in a class of two hundred at Concord High School where his classmates named him as being the most literary, most sophisticated, and most likely to succeed. During high school Souter was named president of the National Honor Society and coeditor of the yearbook. According to legend, the only time Souter got into trouble as a teenager was when he stayed past closing time at the local historical society.

After high school Souter attended Harvard University. Graduating magna cum laude with a philosophy major in 1961, Souter was inducted into Harvard's prestigious chapter of Phi Beta Kappa, considered by many to be the nation's highest undergraduate academic award. Souter wrote his senior thesis on Supreme Court Justice Oliver Wendell Holmes, Jr., which helped him earn a Rhodes Scholarship to study at Oxford University, where he received a bachelor's degree in jurisprudence in 1963.

Upon returning to the United States, Souter entered Harvard Law School, quickly developing a reputation as a serious student and an independent thinker. However, Souter was not prone to debate issues with his peers, or volunteer in class. Although Souter was a solid law student, he graduated without academic honors and was not chosen for a place on the Harvard Law Review, Harvard's esteemed legal journal, which was a highly coveted position among the students.

In 1966 Souter joined Orr and Reno, a leading New Hampshire firm that handled corporate, probate, tax, and family law cases. Not feeling sufficiently challenged or stimulated by private practice, Souter went to work for the New Hampshire attorney general, ascending from assistant attorney general in 1968 to deputy attorney general in 1971 to attorney general in 1976. Souter did very little prosecuting during his tenure with the attorney general's office, directly handling only nine cases in ten years.

In 1978 Souter was appointed to the bench as a superior court judge in New Hampshire. Attorneys who appeared before Souter described him as an even-handed trial judge with a penchant for detail. Five years later Souter was elevated to the New Hampshire Supreme Court, where he authored more than two hundred opinions and established himself as an assertive judge who often questioned lawyers during oral arguments.

In February 1990 President Bush appointed Souter to the U.S. Court of Appeals for the First Circuit. Five months later, before Souter had written his first opinion as a federal judge, Bush appointed Souter to the U.S. Supreme Court. Subsequently confirmed by a vote of 90-9 in the Senate, Souter became the 105th jurist to serve on the nation's highest court.

Souter has disappointed those in the Bush administration who hoped he would provide the decisive fifth vote for the conservative wing of the Court, comprised of Chief Justice William H. Rehnquist and Associate Justices Antonin Scalia, Clarence Thomas, and Sandra Day O'Connor. Instead, Souter has proven to be a temperate justice, with a mainstream judicial philosophy. He has taken some positions that have upset conservatives, and other positions that have upset liberals.

Souter offended liberals when he voted to uphold federal regulations that prohibited doctors from providing abortion counseling at federally funded clinics, despite objections that such regulations violated the First Amendment (Rust v. Sullivan, 500 U.S. 173, 111 S. Ct. 1759, 114 L. Ed. 2d 233 [1991]). Some liberals were again dismayed when Souter voted to affirm a state ban on nude dancing in Barnes v. Glen Theatre, 501 U.S. 560, 111 S. Ct. 2456, 115 L. Ed. 2d 504 (1991), even though four dissenting justices said the ban violated freedom of expression. Souter also regularly votes in favor of capital punishment.

On the other hand, many conservatives were distraught by Souter's concurring opinion in Lee v. Weisman, 505 U.S. 577, 112 S. Ct. 2649, 120 L. Ed. 2d 467 (1992), which relied on the Establishment Clause of the First Amendment to declare unconstitutional a nonsectarian prayer delivered by a clergyman at a public high school graduation ceremony. In Romer v. Evans, U.S., 116 S. Ct. 1620, 134 L. Ed. 2d 855 (1996), Souter joined the Court's majority opinion that relied on the Equal Protection Clause of the Fourteenth Amendment to strike down a Colorado constitutional provision prohibiting all legislative, executive, and judicial action designed to protect homosexuals from discrimination. Many conservatives were also upset when Souter voted to invalidate the male-only admissions policy at the University of Virginia Military Institute because it discriminated against women who sought entrance to the school's citizen-soldier program (United States v. Virginia, U.S., 116 S. Ct. 2264, 135 L. Ed. 2d 735 [1996]).

Observers have increasingly recognized Souter as the intellectual leader of the emerging moderate core of the Supreme Court. In a number of important decisions, Souter has allied himself with Justices Anthony M. Kennedy and O'Connor to forge an influential coalition that has been joined by members of the Court's ideological extremes. In this regard Souter has played a critical role in building a consensus of judicial philosophy among the Supreme Court justices.

In Planned Parenthood v. Casey, 505 U.S. 833, 112 S. Ct. 2791, 120 L. Ed. 2d 674 (1992), for example, the state of Pennsylvania asked the Supreme Court to overturn Roe v. Wade, 410 U.S. 113, 93 S. Ct. 705, 35 L. Ed. 2d 147 (1973), the decision guaranteeing women the right to terminate their pregnancies under certain circumstances. After oral arguments, five justices—Rehnquist, Scalia, O'Connor, Ken- nedy, and Byron R. White—expressed serious reservations about the holding in Roe. Based on these reservations, Rehnquist was prepared to draft a majority opinion that would have gutted virtually every tenet in the 1973 precedent.

Before Rehnquist finished writing the opinion, however, Souter, O'Connor, and Kennedy met outside the presence of the other justices to discuss the case. Following this meeting, the three justices presented a joint opinion that affirmed the central holding of Roe. Neither the state nor federal governments, the joint opinion in Casey stressed, may pass laws that place an "undue burden" on a woman's right to have an abortion. Souter, O'Connor, and Kennedy drew support from the traditionally liberal John Paul Stevens and Harry A. Blackmun, who concurred in principle with the joint opinion, and from the traditionally conservative Rehnquist, who concurred in judgment.

Souter continues to occupy a pivotal seat on the Supreme Court, using his polite and friendly personality, his patient and contemplative temperament, and his diligent work ethic to earn respect and win support across the ideological spectrum.

Quotes:

"It is much easier to modify an opinion if one has not already persuasively declared it."