Through The Legal Looking Glass--The Nine Gray Eminences

Several of our readers expressed interest in knowing more about our current Supreme Court Justices after my column on the Chief Justices. In response, I'm going to do a series of columns on the Justices, beginning with the most recent to retire, and ending with the most recently seated (likely to have been accomplished by the time I reach the end of the series). So, let's get to work.

DAVID HACKETT SOUTER: Justice Souter served as an Associate Justice of the Supreme Court from 1990 through his retirement from the court on June 29, 2009. He replaced Justice William J. Brennan, Jr. One reason for reviewing the retiring Souter is to view how his retirement is likely to affect the balance of “liberals” versus “conservatives” on the court vis-à-vis the current nominee to replace him.

Justice Souter was appointed by President George H. W. Bush to replace Justice Brennan who had become the poster boy for judicial activism and legislation from the bench. President Bush had run into early difficulty finding judicial candidates of strong conservative credentials who would be acceptable to the Democratic majority in the Senate. Since the nomination and evisceration of Judge Bork a few years earlier, the Democrats had increasingly chosen the path of political assassination of the character of any potential conservative on the court. Souter seemed like the ideal non-entity to fill the seat.

With no discernible paper trail or personal peccadilloes to attack, Bush was able to rely on the judge’s modest life and non-activist career to assure the Democrats that Souter was a moderate man who would not actively seek to un-do past decisions of the Warren-Burger courts. With nothing genuine to attack, the Democrats allowed the nomination and confirmation to go forward. It didn’t stop Ted Kennedy from divining that Souter was a secret Nazi and a woman-hater, but his usual ravings didn’t much sway anyone on either side of the aisle. And the rest, as they say, is history.

Born in Massachusetts in 1939, Souter is the only child of two moderately well-off parents, who moved the family to their farm in New Hampshire when Souter was eleven years old. He grew up there, and then went on to get his bachelor’s degree from Harvard, where he graduated magna cum laude and a member of the Phi Beta Kappa Society. His senior thesis was a positive review of Justice Oliver Wendell Holmes, Jr., the creator of “legal positivism.” He then went on to earn a master’s degree at Magdalen College, Oxford, on a Rhodes scholarship. And finally, on to Harvard Law, graduating in 1966.

Souter briefly went into private practice as an associate of a law firm in Concord, New Hampshire, but after two years decided that private practice was not his cup of tea. He took a position as an Assistant Attorney General for New Hampshire, and came under the tutelage of Attorney General Warren Rudman, who appointed Souter to the number two position in the department as Deputy Attorney General in 1971. Upon Rudman’s return to private practice, Souter became his replacement as New Hampshire Attorney General. During his trial career, Souter was a criminal prosecutor, with a good record of convictions which were sustained on appeal. He also sat as a judge of the superior court in two New Hampshire counties, and was known for his tough sentencing in criminal cases.

In 1983, Governor John Sununu appointed him to the New Hampshire Supreme Court as an Associate Justice. A few years later, Sununu passed Souter over for the appointment to the vacant Chief Justice position in favor of a more senior Justice. Souter went into a very public snit (for New Hampshire, anyway), and threatened to resign from the court. That probably should have served as a warning of things to come, but nobody seemed to notice much at the time. Overlooking the fit of pique, Bush appointed Souter as a federal judge for the United States First Circuit on May 25, 1990. He was confirmed in the Senate by a vote of ninety to nine. In that crowd of nine were the estimable Ted Kennedy and his pal John Kerry, who attempted to paint Souter as a rabid right-winger and “another Bork” based solely on his social connections in New Hampshire.

Relying on the heavy confirmation vote and the opposition to all his other judicial trial balloons, Bush decided that Souter was the ideal candidate for the Supreme Court. Even then, Souter faced heavy opposition from the National Organization for Women, which went so far as to stage a large rally outside the Committee hearings. Its President, Molly Yard, claimed that Souter would “end freedom for women in this country.” The NAACP urged its half-million members to write letters demanding Souter’s defeat. Nevertheless, Souter won an easy confirmation, the last Republican to receive such a reception.

At the time of the nomination, John Sununu, by then President Bush’s Chief of Staff, ignored his misgivings after the flap in New Hampshire over the Chief Justice position, and told Bush that Souter would be “a home run” for conservatives. Although Souter had said in his hearings that he was a strict constructionist, there was no track record in his previous decisions or prosecutorial conduct as to where he stood since he had never had to address directly a federal issue which hinged on federal supremacy or pure constitutional interpretation.

In his first three years on the court, Souter showed no signs of disappointing conservatives. He voted with conservative Chief Justice Rehnquist 95% of the time. He also voted with Justice Scalia 85% of the time, and with O’Connor and Kennedy nearly 97% of the time. The Constitution and precedent seemed safe for the time being. In addition, even when he on rare occasions disagreed with the conservatives, he was reticent about writing a strong dissent.

And then the other shoe dropped. In the 1992 case of Planned Parenthood v. Casey, Souter led the charge in upholding and strengthening Roe v. Wade. In Lee v. Weisman, heard the same year, Souter voted to ban voluntary prayer at a high school graduation. In the Casey matter, Souter brought Justices O’Connor and Kennedy fully into the Roe fold by convincing them that Roe was valid constitutional law. In order to do so, Souter had to convince the other two that the Roe ruling was not particularly applicable to the case, and they should therefore uphold the lower court decision in Casey except for striking the provision of the law that a husband be notified of a pending abortion by his wife.

By upholding the restrictions in the Casey law (with the noted exception), the three appeared to be working a compromise, when in fact they were simply restating the basic holding in Roe, which is that abortion is a right protected by the Constitution. The only particular in which Casey stood directly against Roe was the spousal notification rule, which the Court struck down. Prior to the decision and Souter’s advocacy, Kennedy had leaned toward overruling Roe and O’Connor had expressed a desire to diminish the absolutism inherent in Roe. The three blind mice then wrote a joint opinion for the majority, and from there on were known by abortion opponents as “the troika.” From that point on, the three members of the troika never again considered upholding any restrictions on abortion whatsoever, let alone overruling Roe.

The appointment of Justice Thomas seemed to have had a slight leveling effect on Souter, and he tended for awhile thereafter to vote less liberally in cases involving race and social issues, but he never returned to his original image as a conservative. And by 1994 or so, he was back in full liberal, activist mode. He voted for, and occasionally wrote opinions upholding affirmative action, denying any restrictions on abortion up to and including partial-birth abortion, favoring racial and ethnic preferences, striking all state sodomy laws, favoring the restriction of or elimination of the death penalty in any form, voted reliably in favor of unions and against employers in labor cases, and spoke favorably of the expansion of criminal and prisoner “rights” including granting felons a constitutional right to vote (which the court had heretofore failed to see in the Constitution).

After the decision in Casey upholding Roe, Justice Scalia announced “the Imperial Judiciary lives.” Souter then went on to vote with the minority in the decision upholding a state’s right to determine its own election rules without judicial interference. You know this more commonly as Bush v. Gore, in which Florida’s electoral votes were awarded to future President George W. Bush after the Florida Supreme Court had decided arbitrarily to re-write Florida election law from the bench. Many sources say that Souter broke down and wept after the decision was announced, and once again indicated a desire to leave the bench after not getting his way. His longtime friend and former mentor Warren Rudman denies the story, but then he denied the first one in New Hampshire as well.

I won’t go into the comparison with nominee Sonia Sotomayor beyond saying that if she is confirmed (as seems highly likely at this point), any change in the makeup of the Court’s judicial philosophy will not be appreciable. In one point she differs from Souter in her public statements and judicial paper trail. While Souter harbored his belief in racial preferences secretly and without a track record to show for it, Sotomayor has been very vocal, and has a paper trail (the Ricci v. New Haven case being just the most recent example). In the long run, the vote will remain the same, and judicial activism will have a new, but not different representative on the High Court. But at least Justice Ginsburg will now have someone to go to the Supreme Powder Room with.