David Souter (1939–2025) preferred information, and information are anathema to motion conservatives.
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Supreme Court docket Justice David Souter.
(Diana Walker / Getty Pictures)
Former Supreme Court docket justice David Souter died on Friday morning on the age of 85. The Supreme Court docket didn’t concern a reason behind dying, reporting solely that he died “peacefully” at his house in Harmony, New Hampshire.
The one factor everyone is aware of about Souter is that he was a “Republican,” appointed by George H.W. Bush, who ended up voting with the “liberals.” That’s true, for what that’s price, however the true story is deeper and extra sophisticated than that.
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To grasp how Souter got here to be seen as a “traitor” to the white-wing conservative motion, you first have to grasp one thing concerning the man he changed, Justice William J. Brennan Jr. Brennan was the seventh-longest-serving Supreme Court docket justice in historical past, and a lion of the liberal wing of the courtroom. He was the justice most individuals assume Chief Justice Earl Warren was. He wrote over 1,200 opinions, and was one of the influential justices to ever sit on the courtroom.
Brennan had a stroke in 1990, and retired from the courtroom shortly after, at 85 years previous. The emptiness gave President George H.W. Bush the chance to make his first Supreme Court docket appointment.
Now, that is going to sound bizarre to people who find themselves aware of how Republicans deal with the Supreme Court docket as a life-or-death battle for white cultural patriarchy, however Republicans, very like as we speak’s Democrats, as soon as insisted on treating the Supreme Court docket as a nonpartisan department of presidency. Upon nominating Souter, Bush stated: “You may simply assume that the entire nomination had one thing to do with abortion… It’s one thing a lot broader than that. I’ve an excessive amount of respect for the Supreme Court docket for that.” I do know, I do know, that quote sounds prefer it comes from the president of a completely totally different nation from the one we dwell in, and possibly it does.
The purpose is that this: Bush the elder was by no means going to appoint a hard-right conservative to switch a liberal famous person like Brennan, and the Senate, managed 55–45 by Democrats, would by no means have confirmed a hard-right alternative.
Solely a average, centrist, ruffle-no-feathers sort of Republican would get by the affirmation course of, and Souter match the invoice. Souter had been a long-serving state Supreme Court docket choose in New Hampshire, who had been elevated by Bush simply months previous to a seat of the First Circuit Court docket of Appeals. He had functionally no document that Democrats might assault him on: He had not been actively campaigning for a Supreme Court docket appointment and, so the story goeshad not even totally unpacked his workplace on the First Circuit.
He additionally had a strong ally in his nook: former New Hampshire governor and Bush White Home chief of employees John Sununu.
Souter sailed by the method, and was confirmed by the Senate 90-9. (Senator Pete Wilson of California didn’t vote, and Senators Ted Kennedy and John Kerry of Massachusetts voted towards Souter—how do you want dem apples?)
Souter was by no means presupposed to be a hard-right ideologue. That distinction would go to Bush’s subsequent appointment, Clarence Thomas, who was thought of for nomination after Brennan retired, however Bush wished to “save” him for when Thurgood Marshall retired (as a result of… they’re each Black, you see). Souter was all the time presupposed to be a average conservative.
And he was. Souter didn’t change into extra liberal as he served on the Supreme Court docket—the Republicans on the Supreme Court docket turned extra extremist whereas he served, and Souter merely refused to descend into that sort of darkness.
Souter preferred information, and information are anathema to motion conservatives. I believe Oyez sums up his judicial philosophy fairly properly once they write: “A lot of Souter’s opinions expressed a view that legislation ought to depend upon underlying empirical information and may change when these empirical realities shift.” Souter defended democracy, which meant that he defended the rights of the elected branches of the federal government (Congress and the president) to do just about no matter they wished with minimal judicial intrusion. He was conservative, again when that meant one thing apart from white-wing culture-war points masquerading as legislation.
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The distinction between Souter’s sensible conservatism and the precise wing’s extremism got here to a head within the 1992 case, Deliberate Parenthood v. Casey. That was the frontal problem to Roe v. Wade that conservatives, with an 8–1 benefit on the Supreme Court docket, thought they might use to kill abortion rights. However they have been mistaken. Souter and different Republican justices like Sandra Day O’Connor and Anthony Kennedy joined forces to jot down the bulk opinion in that case that saved Roe. I’ve written about that case intimately and defined that it was the second, the final second, when practicality gained out over ideology amongst some Republican justices.
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Republicans by no means obtained over Souter or his vote in Deliberate Parenthood. By the point George W. Bush was appointed to the presidency by the Supreme Court docket (with the assistance of Souter, by the best way, who joined the Republicans in Bush v. Gorewhich dominated the Florida recount unconstitutional, whereas dissenting from the Republican majority’s opinion that no constitutional recount could possibly be customary), there was an ongoing chorus inside conservative circles: “No Extra Souters.”
I’d argue that Republicans reformed their whole judicial nominating course of to keep away from making one other choose like Souter. Souter was the explanation the Federalist Society obtained management of the Republican judge-making course of. He could be the final nonideological choose made by a Republican president. Don’t imagine me? Right here is the record of Supreme Court docket justices efficiently appointed by Republicans after Souter: Clarence Thomas, John Roberts, Samuel Alito, Neil Gorsuch, Brett Kavanaugh, Amy Coney Barrett.
All six of these justices voted to overturn Roe v. Wade in Dobbs v. Jackson Ladies’s Well being Group.
Whereas Souter made Republicans rethink how they went about nominations, he lulled the Democrats right into a false sense of safety and complacency about their very own nomination course of—and the combat for the courts. Souter (and O’Connor to a big extent) made Democrats assume that Republican-appointed justices could possibly be reasoned with and would rule on the aspect of legislation and sensible realities as an alternative of partisan politics. Democrats by no means actually obtained the memo that Republicans had modified their whole technique across the Supreme Court docket. The identical Democratically managed Senate that confirmed Souter additionally confirmed Clarence Thomas a yr later. By some means, Democrats couldn’t spot the distinction.
Souter retired in 2009, on the age of 69. He was nonetheless a wholesome man and will simply have served one other decade. However he by no means took to Washington. He moved again to New Hampshire and went again to listening to instances on the First Circuit, the job he was by no means actually allowed to have. His retirement gave Barack Obama his first Supreme Court docket emptiness, which he stuffed with Justice Sonia Sotomayor. Sotomayor offered as a average, centrist liberal—within the mould of Souter, truly. She’s in all probability slid to the left on the courtroom excess of Souter ever did, however, satirically maybe, she’s gotten there in the identical means that Souter did: by being hyper-concerned concerning the underlying information of the instances she hears.
A jurist like David Souter might by no means be appointed to the Supreme Court docket today, by both get together. The period when a president can choose a justice with out understanding beforehand the place they’ll fall on all the most vital points and instances is over. Justices now have to show they’ll align with the agenda of the president who appointed them, kind of. Every get together has “litmus checks” and failure is just not an possibility.
Most individuals will say that’s a nasty factor, however I’ve no time for such wistful naïveté. The Supreme Court docket is essentially the most highly effective department of presidency, the one one that may functionally veto the opposite two mixed. So long as the courtroom has the facility to behave like a partisan department of presidency, it have to be stuffed with partisans.
Souter is the appointment you make while you assume the Supreme Court docket is above politics. However Souter lived lengthy sufficient to see that the courtroom merely doesn’t work that means anymore.
Elie Mystal
Elie Mystal is The Nation’s justice correspondent and a columnist. He’s additionally an Alfred Knobler Fellow on the Sort Media Heart. His first e book is the New York Instances bestseller Enable Me to Retort: A Black Man’s Information to the Structure, printed by The New Press. You’ll be able to subscribe to his Nation publication “Elie v. U.S.” right here.
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