SOUTER, DAVID HACKETT

David Hackett Souter was appointed to the U.S. Supreme Court on July 25, 1990, by President george h. w. 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 was 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 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 Senate vote of 90–9, Souter became the 105th jurist to serve on the nation's highest court.

Souter 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 proved to be a temperate justice, with a mainstream judicial philosophy. He took some positions that upset conservatives and other positions that upset liberals.

"[I]n the field of State constitutional law … If we place too much reliance on federal precedent we will render the State rules a mere row of shadows; if we place too little, we will render State practice incoherent."
—David H. Souter

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, 517 U.S. 620, 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, 518 U.S. 515, 116 S. Ct. 2264, 135 L. Ed. 2d 735 [1996]).

Observers increasingly recognized Souter as the intellectual leader of the emerging moderate core of the Supreme Court. In a number of important decisions, Souter 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, Kennedy, 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.

Opinions in the Early 2000s

As of mid-2003 Souter continued 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. However, many

of his more noteworthy decisions between 1995 and 2003 came in a dissenting role.

For example, Souter dissented from a Supreme Court decision holding that a sentence of two consecutive terms of 25 years to life in prison under California's Career Criminal Punishment Act, also known as the Three Strikes Law, on a conviction of two counts of petty theft with a prior conviction, was neither contrary to, nor an unreasonable application of, clearly established federal law. Lockyer v. Andrade, 123 S.Ct. 1166, 155 L.Ed.2d 144 (U.S. 2003). The defendant had been convicted of stealing videotapes worth $154. The defendant "did not somehow become twice as dangerous to society when he stole the second handful of videotapes," Souter said. "His dangerousness may justify treating one minor felony as serious and warranting long incapacitation, but a second such felony does not disclose greater danger warranting substantially longer incapacitation," Justice Souter argued. If the defendant's sentence is not grossly disproportionate to his crime under the Eighth Amendment's proportionality analysis for determining whether a punishment is cruel and unusual, Souter concluded, the principle would have "no meaning" in any other case to which it might apply.

Souter also dissented from a majority ruling that officers may conduct a routine, suspicionless drug interdiction without informing bus passengers that they have the right not to cooperate and to refuse consent to searches. United States v. Drayton, 536 U.S. 194, 122 S.Ct. 2105, 153 L.Ed.2d 242 (U.S. 2002). The Court's decision expanded upon an earlier case holding that the fourth amendment permits police officers to approach bus passengers at random to ask questions and to request their consent to searches, provided a reasonable person would understand that he or she is free to leave. Souter conceded that "[a]nyone who travels by air today submits to searches of the person and luggage as a condition of boarding the aircraft," and that "is universally accepted that such intrusions are necessary to hedge against risks that … even small children understand." However, "the commonplace precautions of air travel have not, thus far, been justified for ground transportation … and no such conditions have been placed on passengers getting on trains or buses." There is therefore an air of unreality about the Court's explanation that bus passengers consent to searches of their luggage to "enhanc[e] their own safety and the safety of those around them," Souter wrote.

Many of Souter's recent dissenting opinions have earned him a growing reputation as a liberal-leaning justice who broadly interprets the constitutional rights of criminal defendants. However, Souter sided against the defendant in Atwater v. City of Lago Vista, 532 U.S. 318, 121 S.Ct. 1536, 149 L.Ed.2d 549 (U.S. 2001), where he wrote the majority opinion in a 5–4 decision holding that the Fourth Amendment does not forbid a warrantless arrest for a minor criminal offense, such as a misdemeanor seatbelt violation punishable only by a fine.

The case arose when a Texas police officer observed that a motorist driving a pickup truck, as well as her two children, were not wearing seatbelts. Souter rejected the motorist's contention that "founding-era common-law rules" forbade peace officers from making warrantless misdemeanor arrests except in cases of "breach of the peace," a category the motorist claimed was then understood narrowly as covering only those non-felony-level offenses "involving or tending toward violence." In the years leading up to American independence, Souter observed, Parliament repeatedly extended express warrantless search authority to cover misdemeanor-level offenses not amounting to or involving any violent breach of the peace. Souter refused to mint a new rule of constitutional law forbidding custodial arrest, even upon probable cause, when conviction could not ultimately carry any jail time and the government could show no compelling need for immediate detention.

further readings

Gearan, Anne. 2003. "Long Sentences OK for Repeat Criminals." Tallahassee Democrat (March 6).

Henderson, Stephen. 2003. "Justices Uphold Megan's Laws, 3-Strikes Laws." Philadelphia Inquirer (March 6).

Kan, Liang. 1996. "A Theory of Justice Souter." Emory Law Journal 45 (fall).

Murray, Frank J. 2002. "Minor Crimes Split Courts on Rights." Washington Times (March 17).

Puffer, Mark H. 1999. "A Survey of Justice Souter's Decisions in the October 1998 Term." New Hampshire Bar Journal 40 (September).

Simon, James. 1995. The Center Holds: The Power Struggle Inside the Rehnquist Court. New York: Simon & Schuster.

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

David Hackett Souter 1939–, associate justice of the U.S. Supreme Court (1990–2009), b. Melrose, Mass. A graduate of the Harvard Law School, he served as New Hampshire's attorney general (1976–78), and on the state's superior court (1978–83) before being named to the New Hampshire Supreme Court (1983–90). After serving only a short time as a judge on the federal First Circuit Court of Appeals (1990), he was named by President George H. W. Bush in July, 1990, to the U.S. Supreme Court, replacing William Brennan . Although regarded initially as a conservative, Souter emerged by the mid-1990s as key to a moderate bloc that resisted pressures from the political right to undo Court precedents of the 1960s and 70s.