Supreme Court Report

Last of the Old Guard

Photo by David Hume
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Some point to a political connection: Specter’s swap to the Senate Democrats puts the party near an anti-filibuster majority. That would make it easier to approve Souter’s successor.

But there’s another connection: the loss of the moderate Republican. Fewer in the party of Lincoln take the lead in advancing civil rights, privacy and church-state separation.

“Souter thought of himself as a lifelong Republican and conservative, as the terms were used” in his native New Hampshire, says Syracuse University professor Thomas M. Keck, author of a Souter profile in the 2003 book Rehnquist Justice. “What a conservative meant to Souter is different from what it means to Republi­cans now.”

Souter’s Northeastern Republicanism is a relic of the Civil War and Reconstruction, writes East Carolina University professor Tinsley E. Yarbrough in his 2005 biography of Souter. It is not, he writes, “the new Republican Party that depends so heavily on appeals to racially and politically conservative white Southerners and religious fundamentalists.”

In fact, says Harvard Law School professor Mark Tushnet, the Rehnquist court was really divided between the two types of Republicans. On one side were backers of Barry Goldwater and Ronald Reagan, who opposed the legal tradition from the New Deal.

On the other were Souter and Justice Sandra Day O’Connor, who “drew on more traditional Republican Party themes to temper and resist a transformation of constitutional theory,” writes Tushnet in his 2005 book, A Court Divided.


That influence came out in Souter’s respect for stare decisis, letting precedent guide. Souter’s “decisions con­sistently emphasize careful, measured read­ings of the law—not hostile to recognizing fundamental rights in new contexts, but also guided by precedent,” says Georgetown University law professor Rebecca Tushnet, a Souter clerk in the 1999-2000 term.

Stare decisis contributed to Planned Parenthood of South­eastern Pennsylvania v. Casey, the watershed 1992 ruling that upheld the basics of a woman’s right to seek an abortion.

In particular, Keck says, Souter (with co-authors O’Connor and Justice Anthony M. Kennedy) linked the ruling to cases written by Justice John Marshall Harlan II, the Warren court Republican who dissented from many landmark 1960s cases but defended constitutional liberty.

That was no surprise: Harlan was Souter’s model. Harlan went “out of his way to show that we judges aren’t just making this up,” says Keck.

Contemporary Republicans were aghast. “Conser­vative Republicans of the 21st century were upset with him,” says University of Pennsylvania professor Kermit Roosevelt, a Souter clerk in 1999-2000.

“Instead of turning the court to the right, as President George H.W. Bush hoped,” says Ilya Shapiro, senior fellow for constitutional studies at the Cato Institute in Washington, D.C., “Souter kept the court just where it was. He is thus more famous for what he is not than what he is—and his retirement, to many people, sig­nifies the ‘end of an error.’ ”

Souter also is a history buff. His “lasting legacy is a series of opinions in which he directly grappled with conservatives on the grounds of history,” Keck says.

He often dueled with Justice Antonin Scalia, the court’s other student of history, over details of the Constitu­tion’s historical founding.

Nor has Souter gotten sufficient credit for his historical knowledge. “Being a historian allows him to be confident in the arc of history,” says Boston College law professor Kent Greenfield, a Souter clerk in 1994-95.

And empathetic. Although it’s not among Souter’s most memorable decisions, Greenfield recalls working on the 1995 criminal law case Kyles v. Whitley. The defen­dant was a “down-on-his-luck black male in Louisiana. If you can find a person more unlike Souter, I defy you.”

As Souter leaves D.C. to return to New Hampshire, the question arises: What brought him from his Thoreau­vian life to the pressured cabin of Washing­ton? Says Greenfield: “It is as public service—he is someone who serves the Constitution and country.”

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