David Souter, former US Supreme Court justice, dies at 85
David Souter, the former U.S. Supreme Court justice who dismayed Republicans by siding with liberals on some of America’s most contentious social issues after his appointment by President George H.W. Bush, has died. He was 85.
Souter died peacefully at his home Thursday in New Hampshire, the court said in statement released Friday. The statement didn’t give a cause of death.
“Justice David Souter served our court with great distinction for nearly twenty years,” Chief Justice John Roberts said in a statement. “He brought uncommon wisdom and kindness to a lifetime of public service.”
The American Bar Association also released a statement, saying, “Souter epitomized what a thoughtful, scholarly, independent Supreme Court justice should be. The ABA appreciates his service and will miss his wisdom.”
Known for his spartan lifestyle, aversion to technology and dislike of Washington, Souter served on the Supreme Court for 19 years before stepping down at the relatively young age of 69 to return to his native New Hampshire in 2009.
As a justice, he supported gay and abortion rights, limits on government support for religion and restrictions on the death penalty, making him one of the court’s most liberal members. Activists on the right who were disappointed with his votes made “no more Souters” their rallying cry for future nominees, demanding a paper trail that documented conservative judicial instincts.
Their efforts largely paid off. In the more than three decades since Souter joined the court, Republican presidents have nominated solidly committed conservatives, with recent ones vetted carefully by the Federalist Society, an influential group within Republican circles.
Some observers had called Souter a “stealth nominee” when Bush selected him in July 1990 just three days after William Brennan, a fixture on the court’s liberal wing, announced he was stepping down. A former New Hampshire state judge, Souter had by then served less than three months on a U.S. appeals court and given little indication how he would rule on federal constitutional issues.
Abortion opinion
An early indication of what type of justice he’d be came in 1992, when Souter and Justices Sandra Day O’Connor and Anthony M. Kennedy—appointees of another Republican president, Ronald Reagan—wrote an unusual joint opinion that affirmed the right to abortion, established in 1973 by the Roe v. Wade decision. Each of the three justices announced part of the ruling from the bench.
To overrule Roe “would subvert the court’s legitimacy beyond any reasonable question,” Souter told the courtroom audience in his deep New England accent.
Thirty years later, a more conservative Supreme Court would disagree, overturning the 1992 decision and by extension a key part of Souter’s legacy.
On the death penalty, Souter joined a 2002 decision that barred executions of mentally retarded killers. He also was part of the majority in the court’s 2003 ruling that legalized gay sexual conduct in private between consenting adults, overturning a 1986 decision that let people be criminally prosecuted for such acts.
Prayer in schools
When the court barred clergy-led prayer from public high-school graduation ceremonies in 1992, Souter wrote that government sponsorship of such prayers is “understood as an official endorsement of religion.”
“However ‘ceremonial’ their messages may be, they are flatly unconstitutional,” Souter wrote.
Souter called himself “a computer illiterate” who relied on his clerks to handle the digital aspects of his work. He also opposed televising Supreme Court argument sessions. “The day you see a camera come into our courtroom, it’s going to roll over my dead body,” he told a congressional panel in 1996.
No fan of Washington, Souter eschewed the capital city’s social scene and preferred returning to New Hampshire as quickly as possible when the court was out of session.
“I retired when the Supreme Court rose for the summer recess in 2009, and a couple of weeks later I drove north from Washington with no regrets about the prior 19 years or about the decision to try living a more normal life for whatever time might remain,” he wrote.
Rhodes scholar
David Hackett Souter was born on Sept. 17, 1939, in Melrose, Massachusetts, the only child of a bank officer and a homemaker. He moved with his family to his grandparents’ farmhouse in Weare, New Hampshire, when he was 11.
He graduated from Harvard College and Harvard Law School and studied as a Rhodes scholar at Oxford University in England. After two years of private law practice, he joined the New Hampshire attorney general’s office in 1968 and became state attorney general in 1976.
Souter became a state judge in 1978 and five years later joined the New Hampshire Supreme Court. The first President Bush named him to the Boston-based 1st U.S. Circuit Court of Appeals in 1990 before elevating him to the Supreme Court.
The Senate confirmed him by a vote of 90-9, with all Republicans and all but nine Democrats voting yes.
Souter was one of four justices who dissented from a line of decisions starting in 1995 that gave more power to the states at the expense of the federal government. The decisions threw out a federal ban on gun possession within school zones, barred rape victims from suing their attackers in federal court, and made states immune from some lawsuits claiming age or disability bias and unfair wage practices.
Bush v. Gore
He dissented from the 2000 Bush v. Gore ruling, the 5-4 decision that halted Florida ballot recounts and sealed George W. Bush’s election as president over Democrat Al Gore. Even with time running short before the Electoral College was to meet, Souter wrote in dissent, there “is no justification for denying the state the opportunity to try to count all disputed ballots now.”
Souter again dissented when the court voted 5-4 in 2002 to allow tax-funded school-voucher programs as long as parents can choose whether to send their children to religious or non-religious schools. In his dissent, Souter said the ruling diluted the Constitution’s First Amendment ban on government establishment of religion.
In 2005, Souter voted to ban displays of the Ten Commandments on the grounds of the Texas State Capitol and in two Kentucky courthouses. That same year, he joined a 5-4 majority in ruling that local governments have broad power to take over private property to make way for shopping malls and office parks.
He joined a series of decisions that bolstered the rights of detainees at Guantanamo Bay in Cuba and carved out a central role for the judiciary during wartime. The last of those rulings, in 2006, barred the military tribunals that the Bush administration wanted to use to put accused terrorists on trial.
Yogurt and apple
A lifelong bachelor who didn’t have children, Souter had simple tastes. For lunch, he would eat yogurt and an apple at his desk. He loved books and, after retirement, had so many he worried his rickety farmhouse wouldn’t be able to support them all. He instead moved to Hopkins Green, near Concord, New Hampshire.
While on the court, he would say his work as a justice interfered with his real intellectual pursuits. He quipped in 2009 that he underwent a “sort of annual intellectual lobotomy” before each new court term opened in October.
Writing for Harvard Magazine in 2011, he said his retirement reading would consist of “mostly history: the classical period, the Carolingians, Britain up through the fourteenth century, American Puritanism as seen by historians after Perry Miller, the United States from Jefferson through Lincoln.”
An avid runner, Souter received minor injuries in 2004 when he was attacked by several men while jogging at night along a street in Washington. The attackers escaped.
He continued serving as a judge even after his retirement from the Supreme Court, sitting occasionally on the Boston-based 1st U.S. Circuit Court of Appeals.
Updated at 3:38 p.m. to include the American Bar Association’s statement.
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