Souter, David Hackett (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
