David Souter’s Quiet Resistance

Think for a moment about what could’ve been.

In 1990, Justice William Brennan retired from the US Supreme Court, and George H. W. Bush, early in his presidency, replaced him. This was a conservative president’s dream; Bush couldn’t have been more excited by the opportunity. Brennan was not just your average, middle-of-the-road Justice, but rather one of the most activist liberals in the history of the Court, a prime driver in hundreds of signature progressive cases stretching from the 1950s to the late 80s. Brennan was a liberal champion of issues like affirmative action and busing, the right to privacy, abortion and women’s rights, restrictions on presidential power, the death penalty, and search and seizure. There was no doubt in anyone’s mind that President Bush would find a staunch conservative to take Brennan’s coveted seat, and that Bush’s replacement would immediately redirect the law severely to the right.

There was only one problem. The highly-publicized Senate confirmation process for Supreme Court Justices had grown more and more contentious recently. In 1987, Robert Bork, a well-known conservative judge, had been rejected by the Democrat majority Senate because his written views were too extreme, and too well documented. Although Bush would’ve loved to appoint someone just like Robert Bork, it was risky. Any judge who had served for a long time on the federal bench would have too much of a paper trail, would be too well know, and would likely not get past the Democratic Senate. What Bush needed was a stealth candidate: a radical conservative, but relatively unknown. Someone who could sneak through the Senate process without giving away too much of his or her judicial philosophy, and who would then deliver extreme right-leaning opinions on the Supreme Court for the next twenty to thirty years.

Bush’s Chief of Staff, John Sununu, knew just the man. David Souter was a life-long Republican from Sununu’s home state of New Hampshire, a former state Attorney General and judge on the superior court. He had only very recently been appointed to the federal bench. He had virtually no paper trail, no way anyone could pin controversial conservative rulings on him. And best of all, Sununu could assure President Bush that Souter was the real deal, a conservative in the mold of Robert Bork, but without Bork’s past. He was the perfect nominee.

Bush interviewed Souter, and agreed. And so when Souter’s nomination came before the Senate there was no real ground to strike him down. Although nine of the most liberal Senators, including Ted Kennedy and John Kerry, acted on their fears of who he might be, and voted against him, the majority let Souter pass.

For a year or two, Justice David Souter appeared to be just the man that President Bush had wanted, and that the liberals had feared. But it didn’t last. Souter’s ‘switch’ was heralded by a 1992 case, Planned Parenthood v. Casey, the most important abortion-rights suit since Roe v. Wade. Souter’s position in that case wasn’t exactly liberal, but he did, in a joint concurrence, vote to uphold Roe’s central right to abortion. To everyone’s great surprise, a woman’s right to abortion, while curtailed, wasn’t going to be fully surrendered under Souter’s watch.

In subsequent years, more relatively liberal rulings followed. Souter proved to be no Robert Bork.

In my opinion, Justice Souter’s increasingly liberal rulings in his almost nineteen years on the Court make him the most important Justice of the past fifty years. That importance is largely due to his limiting force rather than his transformational force, so it’s easy to overlook and to underestimate. Souter was not the most liberal Justice of the past half century, not by a long shot, nor did he have the most influential jurisprudence (that honor, so to speak, probably goes to Justice Scalia), but Souter’s vote was the one that should’ve gone the other way on every significant case. If Souter had been the Justice that President Bush had wanted, the Justice that Bush thought he was getting, then abortion would most likely be illegal in the United States, and the first amendment Establishment Clause would no longer have the same limiting force, and that’s just the beginning. When Souter retired – reportedly out of disgust for his job, thanks in part to the extreme partisan ruling in Bush v. Gore – he made sure to wait until a Democrat would replace him. President Obama had that honor, and filled Souter’s seat with Sonia Sotomayor. Without Sotomayor’s vote, many other key cases – on gay marriage and on the Affordable Care Act, just to name two – would’ve certainly gone the other way. And so while the period from around 1970 to today is characterized by a conservative revolution in law, a revolution led by numerous judges and politicians, that revolution is only partially realized. Its limitation is largely due to David Souter.

President Bush got the Justice he wanted and expected in his second appointment to the Supreme Court in 1991. Justice Clarence Thomas, another relative unknown, was chosen to replace the staunchly liberal Thurgood Marshall. Justice Thomas did what was expected – he pulled the law radically to the right. He remains the most reliably conservative member of the Supreme Court today, and was named the model Justice for the second President Bush’s appointments – Justices Roberts and Alito. Souter should have been like Clarence Thomas. Many people thought that he would be like Thomas. If he had been like Thomas, he would’ve joined a clear majority that would have radically transformed the law.

The big irony of Souter’s ‘liberal transformation’ is that all he actually did was maintain the traditionally conservative doctrine of stare decisis – respect for precedent. Ever since Edmund Burke, conservatism has been defined by some version of stare decisis: don’t move too quickly on any change, keep what’s ‘good’ about the past, don’t be seduced by revolution. For decades, the Republican party defined itself by respect for precedent, socially, politically, legally. Ironically, what has happened to the Republican party over the past fifty years is nothing other than radical revolution; the party’s values have little in common with traditional conservatism. This is as true in law as it is in politics. Souter was merely an old-fashioned conservative from a quainter era, a New Hampshire conservative, a man who believed that the legal decisions of previous Courts should never be thrown out automatically, a judge who practiced stare decisis. The irony of Souter’s liberalism is really the irony of all of today’s politics. The so-called liberal progressives are behaving like conservatives (they are trying to conserve the values and legal trajectories of yesteryear), while the so-called conservatives are behaving like radical revolutionaries, of the right-wing variety.

There’s a bigger question behind Souter’s liberal transformation. Why was Souter, a solid Republican, able switch positions on so many key issues when other Republicans could not, when they simply rode the right-breaking wave of a radicalized party? The answer lies, I think, in Souter’s humanism. Souter has always been a wide and vast reader, a history buff, a lover of the humanities. He hated the stale legalism of the Supreme Court, despised the many ways in which the law retreats into legalistic, intellectual arguments. Robert Bork once called the work of a Supreme Court Justice “an intellectual feast”; Souter called his job on the Court an annual “intellectual lobotomy”. This is a telling contrast. Many right-leaning Justices eschew humanism and its teachings – they are too busy thinking about strict, original readings of the text. They love to think about the law as a stale document, a set of rules and restrictions that we can cling to in a cultural storm, instead of as a living tradition that affects real people in the real world. To think actively about the human beings affected by your cases requires empathy, historical perspective, and love. It’s the kind of lesson that David Souter must have learned from the humanities, and it’s the quality in his character that allowed him to resist – for all Americans – a radical revolution in American Law.

UPDATE: John Q. Barrett of St. John’s University writes an interesting and persuasive critique about how Bush never really vetted Souter properly, and about how the President shouldn’t have been surprised by the Justice’s liberal results.

Bush’s recent biographer, Jon Meacham, claims in an interview that President Bush was, in retrospect, disappointed with Souter and pleased with Clarence Thomas. Meacham says the former President told him as much.

Limited vetting notwithstanding, Souter’s dramatic effect shouldn’t be underestimated.