Justice David Souter, RIP

The H. W. Bush appointee passed away in his New Hampshire home at the age of 85.

David Souter, a retired Supreme Court Justice known best for his migration to the Court’s liberal wing after his appointment by a Republican President and Senate, died in his home in New Hampshire, aged 85. Nominated by President George H. W. Bush in 1990, Souter served 19 years on the Supreme Court bench before his retirement at the relatively youthful age of 69.

Chief Justice Roberts said of Souter in a statement released by the Supreme Court:

Justice David Souter served our Court with great distinction for nearly twenty years. He brought uncommon wisdom and kindness to a lifetime of public service. After retiring to his beloved New Hampshire in 2009, he continued to render significant service to our branch by sitting regularly on the Court of Appeals for the First Circuit for more than a decade. He will be greatly missed.

Souter’s legacy will be defined by two key aspects of his personal and judicial character. First, Souter was remarkable for his shyness and humility. A lifelong bachelor, Souter avoided the DC cocktail circuit, preferring nights alone reading. He was known to work twelve-hour days and eat a simple lunch of yogurt and an apple, the latter of which he would eat through to the core. His relatively early retirement was driven in large part by his desire to spend more time in his hometown of Weare, New Hampshire, at peace with his solitary walks and massive collection of books.

Second, Souter was famous for his “defection” to the Court’s liberal wing. When nominated to the Supreme Court bench, Souter’s “paper trail” was practically nonexistent. He had spent the vast majority of his career as a state court judge in New Hampshire, and had barely moved into his chambers at the First Circuit Court of Appeals when he was tapped for the Supreme Court, so nobody knew exactly where he stood on the controversial legal issues of the day. When he took the bench, it was revealed that he was much more of a dispositional conservative than an ideological one, reluctant to make sweeping decisions and upset settled law.

It was this conservatism that led him to join the joint plurality opinion in Planned Parenthood v. Casey, which preserved the core holding of Roe v. Wade by a bare five-vote majority. As he said in announcing the judgement of the Court from the bench:

The Court's duty in the present case is clear.

In 1973, it confronted the already-divisive issue of governmental power to limit personal choice to undergo abortion, for which it provided a new resolution based on the due process guaranteed by the Fourteenth Amendment.

A decision to overrule Roe's essential holding under the existing circumstances would address error, if error there was, at the cost of both profound and unnecessary damage to the Court's legitimacy, and to the Nation's commitment to the rule of law.

Souter’s decision to uphold Roe infuriated conservatives, and helped give rise to the modern conservative legal movement whose job it is, in large part, to ensure that “no more Souters” are appointed to the bench. Souter, the dispositionally conservative liberal Republican Justice, almost certainly leaves this world as the last of his kind. His jurisprudence, whatever its flaws might have been, speaks to a now-bygone romanticism which suggests that the Court and the Constitution can rise above ideology and partisan politics and bring the country together. It is the romanticism of the man who preferred the thick bonds of his small New England town to the bright lights of Washington, who spent his post-retirement career engaged in nonpartisan civic education initiatives, who believed in an America that might no longer exist.