Last month, Supreme Court Justice David Souter (1939-2025) passed into history. If I had to pick the most uncontroversial justice in the time of his service, I would pick him. What strikes me as most interesting about Souter, however, is what was expected of him and what the reality was. The short story is that he was nominated by Republican President George H.W. Bush in 1990, and contrary to expectations that he would be on the court’s conservative wing, before long he was voting with its liberal wing. What I will explain today is why conservatives thought he would be on their team and why liberals were afraid he would constitute a shift in the court to the right.

The Story

In 1990, Justice William Brennan, the intellectual architect of the Warren Court decisions and the foremost intellectual liberal during his time on the bench, was stepping down, and doing so at a rather worrisome time for liberals. Democrats had been out of the White House since the 1980 election, and President George H.W. Bush was interested in getting conservatives on the Supreme Court. However, one thing that weighed heavily upon his mind was President Reagan’s failed nomination of Robert Bork. Bork had a long ideological paper-trail, and one that liberal activists were able to use effectively to derail his nomination. Bush didn’t want a repeat, and thus he thought that going obscure in his pick would be the best path. Republican Senator Warren Rudman of New Hampshire, a moderate conservative who had served as the state’s attorney general before Souter, recommended him. Margaret Carlson (1990) of Time Magazine described the political motivation of Bush, “In Souter, Bush may have found the last person in America who does not think in opinionated sound bites. Souter, with his Yankee reticence, does not presume anyone would be interested in what he thinks if legal scholars have already thought about it. In that, he may be the answer to the President’s secret moderate dreams: someone conservative enough to allay right-wing suspicions that he has been insufficiently sympathetic to their causes but at the same time unknown enough to keep liberals from finding anything on which to hang another bruising confirmation fight.” Souter was also in a number of ways a quirky and enigmatic individual. At 50, he was a lifelong bachelor which to some suggested homosexuality, but no evidence ever surfaced that this was the case, and he had a history of dating women. Souter was also noted for his love of spending his evenings reading classic literature in silence, attending the opera, antique books, and hiking. At the time, conservatives were pleased as punch about his nomination. Chief of Staff John Sununu, who had known Souter when he was serving as New Hampshire’s governor, told conservatives that he would be a “home run” for their team (Lacayo). Indeed, there were some indicators that he would be a conservative in philosophy.

Souter had served as the state’s attorney general under Governor Meldrim Thomson, Jr., from 1976 to 1978, and frequently defended his stances and policies. Governor Thomson was notable for his ultra-conservatism, and had seen fit to tap him for the New Hampshire Superior Court (their Supreme Court). Souter’s record on the New Hampshire Superior Court gave mixed indications for those trying to read the tea leaves on what he would be on the Supreme Court. He ruled favorably on environmental and consumer protections, but tended to side with the prosecution on criminal justice cases. Souter also had three months on the U.S. Court of Appeals for the First Circuit, but this was insufficient to establish how he would vote on the federal level. Souter also wrote in a court decision in 1986, “the court’s interpretive task is to determine the meaning of…((constitutional language)) as it was understood when the framers proposed it” and in 1976 he had spoken of affirmative action as “affirmative discrimination” (Carlson).

Although Souter’s political background, especially as attorney general under Governor Thomson, would suggest conservatism, the Senate Judiciary Committee voted 13-1 to recommend Souter’s confirmation. Senator Ted Kennedy (D-Mass.) was the sole dissenter, stating, “I am troubled that, if Judge Souter joins the current closely divided Supreme Court, he will solidify a 5-4 anti-civil rights, anti-privacy majority inclined to turn back the clock on the historic progress of recent decades” (Savage). Most Democrats were okay enough with him and his lack of federal jurisprudence to vote for him, and his confirmation vote came out to a resounding 90-9 on October 2nd. He was nonetheless opposed by the liberal Americans for Democratic Action, and the American Conservative Union counted his confirmation as a conservative vote. Both positions seem most peculiar in retrospect if you didn’t know the context in which he was confirmed and his background. The senators who voted against Souter were entirely from the Democratic Party’s liberal wing, and they were Alan Cranston of California, Daniel Akaka of Hawaii, Barbara Mikulski of Maryland, Ted Kennedy and John Kerry of Massachusetts, Bill Bradley and Dan Lautenberg of New Jersey, Quentin Burdick of North Dakota (yes, North Dakota at one time could elect liberals statewide), and Brock Adams of Washington.

Although in his first year on the Supreme Court, Bush seemed to have had an unqualified success with Souter as he did indeed vote conservative on criminal justice cases in his early years, but in 1992 he joined the majority in Planned Parenthood v. Casey, which rather than overturn Roe v. Wade as conservatives hoped, strengthened it. In law school, Souter had taken to the philosophy of Justice Oliver Wendell Holmes, Jr., and as a justice acted accordingly. In his rulings, he favored strict separation of church and state, upholding affirmative action despite his prior criticism, voted to uphold government using eminent domain for purposes of economic development, and was among the four dissenters in Bush v. Gore (2000). By the late 1990s, Souter was voting solidly with the court’s liberal wing, thus making Bush’s nomination of him only a partial success in the long run, in the sense that he didn’t get a bruising Senate confirmation fight. In 2001, Kennedy expressed his regret that he voted against him given what his record proved to be (CNN). Souter opted to wait until George W. Bush was out of office to fulfill his wish to retire, doing so in 2009, thus allowing President Barack Obama to pick Justice Sonya Sotomayor, currently the strongest liberal sitting on the court.

The Souter confirmation taught conservatives a lesson; that they needed to carefully ideologically vet the people they were voting on for the Supreme Court. Indeed, for them, Souter was one of a series of appointments that Republican presidents made that was a mistake. Others included Justices Warren and Brennan by Eisenhower, Justice Blackmun by Nixon, and Justice Stevens by Ford. Some conservatives also consider the appointments of Burger and Powell by Nixon as well as O’Connor and Kennedy by Reagan to have been mistakes at least over the issue of abortion. I would say that Souter was the last justice picked by a Republican president who turned out to be a court liberal, even if there are some occasional rumblings about justices such as Roberts, Kavanaugh, and Barrett for not always doing what the activist right wants. He also happened to be the last justice nominated by a Republican to get a majority of Democratic votes.

References

1990 ADA Voting Record. Americans for Democratic Action.

Retrieved from

Click to access 1990.pdf

Carlson, M. (1990, August 6). David Souter: An 18^th Century Man. Time Magazine.

Retrieved from

https://time.com/archive/6715550/david-souter-an-18th-century-man/

David H. Souter. Oyez.

Retrieved from

https://www.oyez.org/justices/david_h_souter

Lacayo, R. (2009, May 2). Evaluating Souter: A Strange Judicial Trip, Leaning Left. Time Magazine.

Retrieved from

https://time.com/archive/6914477/evaluating-souter-a-strange-judicial-trip-leaning-left/

PN1414 – Souter Nomination. CPAC Center for Legislative Accountability.

Retrieved from

http://ratings.conservative.org/bills/US-1990-senate-PN1414

Savage, D.G. (1990, September 28). Panel Approves Souter; Kennedy Only Dissenter. Los Angeles Times.

Retrieved from

https://www.latimes.com/archives/la-xpm-1990-09-28-mn-1196-story.html

Ted Kennedy Discusses Current Congressional Issues. (2001, July 21). CNN.

Retrieved fromhttps://transcripts.cnn.com/show/en/date/2001-07-21/segment/00