Souter, David Hackett

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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.

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