|Former Associate Justice of the U.S. Supreme Court|
From: October 9, 1990 – June 29, 2009
|Nominator||George H. W. Bush|
David Hackett Souter was an Associate Justice of the U.S. Supreme Court. On May 1, 2009, he sent his official notice of resignation to President Barack Hussein Obama. He has reportedly wanted to resign ever since the 2000 election, but apparently delayed his retirement. Incredibly, he prohibited releasing his papers until 50 years after his death, as though anyone would have any interest about him so far into the distant future - "That's a lengthier seal than any justice has placed on papers in recent memory."
Souter was nominated for the Supreme Court in 1990 by President George H. W. Bush to succeed retiring Associate Justice William J. Brennan, often known as one of the Court's two most liberal members (the other being Associate Justice Thurgood Marshall, who would retire the following year). Thus, this vacancy represented a chance for President Bush to shift the Court to the right, as his predecessor, Ronald Reagan, had tried to do. In nominating Souter, Bush had adopted what has come to be known as the "stealth strategy." Souter had a very small "paper trail," thus making him difficult to label as a conservative or a liberal. Some conservatives advising President Bush failed to realize that a stealth candidate may not withstand the intense pressure of the liberal media after confirmation, a mistake that may have been repeated in the ill-fated nomination of Harriet Miers about 15 years later.
Bush had received assurances that Souter would be a conservative from his Chief of Staff, John Sununu, who had appointed Souter to the New Hampshire Supreme Court years earlier. Thus, Bush hoped to disarm liberal Senators who might oppose an obviously conservative nominee, as they had done just three years earlier with Robert Bork. But almost immediately it was apparent to some conservatives that Souter was not pro-life, as he had served as a director on a hospital that performed abortions. Liberals seemed to know that they had won. Even though he was grilled to define his view on abortion, Souter didn't take the bait and he was confirmed by a vote of 90-9 by the U.S. Senate, with all votes against him being Democrats.
Souter went on to align himself firmly with the more liberal bloc on the Court, leading to conservative anger at President Bush for this calculated blunder. Souter's style is noticeably non-legal, as when he opened one opinion with an unusually non-legal description of "mens rea":
- whether Arizona violates due process in restricting consideration of defense evidence of mental illness and incapacity to its bearing on a claim of insanity, thus eliminating its significance directly on the issue of the mental element of the crime charged (known in legal shorthand as the mens rea, or guilty mind)
Timeline of Souter's shift from conservative to liberal
October 1990: Newly confirmed, David Souter joins the U.S. Supreme Court as an Associate Justice. The term runs from October to June, as most controversial decisions are issued near the end of the term, in May and June.
May 16, 1991: Linda Greenhouse writes in the New York Times that "Lawyers who watch the Court closely have taken to referring to Justice Souter's chambers as a black hole, from which nothing emerges." In the same column, she emphasizes that "Probably the most closely watched [pending decision] is Rust v. Sullivan, a free-speech challenge to the Federal policy that prohibits federally financed family planning clinics from providing information about abortion."
May 23: The Court announces Rust v. Sullivan, in which Souter joined the conservative majority. Liberals are outraged.
May 24: On ABC World News Tonight, Tim O'Brien stated that "Since joining the Supreme Court last October, David Souter has written only one decision for a unanimous court in an easy case. That was last February and he hasn't written a single word since; no concurring opinions, no dissents and he hasn't completed any other decisions assigned to him. On average each of his colleagues has written seven decisions. O'Connor's written a dozen, Rehnquist ten. People are noticing. Newsweek observed Souter is 'slow off the mark' and that clerks of the Court blame the Justice's anemic output for a gridlock in the Court's work. No freshman justice in the last 20 years has been so slow. At this point in his first term, Justice Scalia had written nine majority opinions and seven dissents; Justice Kennedy, also nine majority opinions and two dissents; O’Connor seven majority opinions and three dissents. As the New York Times observes, Souter's chambers are known around the Court as 'a black hole from which nothing emerges'; it may force a frantic finish if the Court is to end its term next month as planned. At the Justices' ultraprivate conferences, Souter is said to be eminently prepared to discuss the cases, but not to decide them. And Chief Justice William Rehnquist reportedly stopped assigning Souter opinions last month because he was so far behind. ...”
May 26: The Boston Globe, the leading paper from Souter's area, lambasted him in a scathing article. "'There is far less basis now than there was at the time of his confirmation hearings to think that he is likely to play an important centrist role,' said Laurence H. Tribe, a liberal professor at Harvard Law School who had argued the case for the family planning clinics in the high court. ... [M]ost court watchers are struck less by what Souter has done than by what he has not done - write. Apart from one unanimous opinion he wrote in mid-February, the court has not published a word by Souter in majority, concurrence or dissent. The average number of majority opinions among the other justices is more than six. By this time in his first term, 1986-87, Scalia had published six opinions and five dissents. It is true that Scalia came to the high court from a federal bench and was therefore more familiar with many of the statutes and issues facing the justices than was Souter, who arrived from the New Hampshire Supreme Court. It is also true that Scalia is an unusually loquacious individual. But a fairer comparison, with O'Connor, who joined the court in 1981 from an Arizona state appeals court, shows Souter lacking still. By this time in her tenure, O'Connor had written seven opinions, three dissents and five concurrences. … [T]here is no denying that Souter has found adjustment to work at the Supreme Court harder than others.”
June 3: The Boston Globe announces, "Justice David H. Souter, whose votes on the Supreme Court have angered liberals, has chosen as a law clerk a Bostonian who works for Professor Laurence H. Tribe of the Harvard Law School, a noted liberal jurist. Peter J. Rubin, 28, who will begin his one-year clerkship in July, worked closely with Tribe last year in writing a book that defended the 1973 Roe vs. Wade ruling declaring abortion a constitutional right. In addition, Rubin's name appears with Tribe’s on one of his briefs to the high court in the recent widely publicized case of Rust vs. Sullivan, in which the court approved of a government policy banning personnel in federally subsidized family planning clinics from discussing abortion. Tribe had argued against the policy for the clinics, and Souter provided the crucial fifth vote on the court against Tribe’s case."
June 10: Tony Mauro, a leading syndicated legal analyst, wrote that "Even as analysts begin picking apart his voting record to analyze what Souter has done, he is also under attack for what he hasn't done: write. Souter is undeniably slow at the business of opinion-writing. With only three opinions to show for his labor thus far, it appears that he has produced less than any other freshman justice in the last 20 years. By this point in their freshman terms, Sandra Day O'Connor, Antonin Scalia and Anthony Kennedy had all written opinions and dissents numbering in the two digits. Souter hasn't yet penned a dissent, and the majority opinions he has written have been in low-profile, low-controversy cases. Whispers of his inability to decide and his perfectionist approach to writing circulate at the court. Indeed, decisions written by others -- including the abortion-counseling case Rust v. Sullivan, No. 89-1391 -- are scrutinized for signs of late additions made to push Souter off the fence. 'A black hole, from which nothing emerges,' is the artful phrase Linda Greenhouse of The New York Times used to describe Souter’s chambers. 'Slow off the mark,' said a Newsweek gossip item that quotes anonymous clerk's as blaming Souter for the court's slow pace."
June 29, 1992: Souter provides the pivotal fifth vote for abortion in Planned Parenthood v. Casey. This decision has been used to invalidate numerous state laws concerning abortion ever since.
Justice Souter's delays in issuing decisions continued. Justice Souter's unremarkable and uncontroversial opinion on a relatively simple issue of the insanity defense detained the court until June 29, 2006, when the court would otherwise prefer already to be on its summer break, in Clark v. Arizona, 126 S. Ct. 2709 (2006).
Yet after Justice Souter switched to the liberal side in 1992, as described above, no (liberal) newspaper referred again to him as a "black hole." Then, after he announced his retirement in spring 2009, liberal journalists switched back to disrespectful criticism again.
- Justice David Souter (May 1, 2009). Souter's Letter (English). The Supreme Court of the United States. Scribd. Retrieved on May 2, 2009.
- Clark v. Arizona, 126 S. Ct. 2709, 2716 (2006) (emphasis added).