How Souter’s ‘Stealth Liberalism’ Reshaped the Supreme Court docket

David Souter throughout his Senate affirmation hearings in 1990.
Photograph: CQ-Roll Name/Getty Photos

David Souter, the previous U.S. Supreme Court docket justice who retired on the age of 69 and died this week at 85, was considered by liberals as a person of conservative temperament, if not essentially conservative views. New York Instances authorized columnist Linda Greenhouse introduced this tackle Souter succinctly:

Justice Souter portrayed himself as he was: a choose of principally conservative instincts who took as his function mannequin Justice John Marshall Harlan II, a distinguished New York lawyer and an Eisenhower appointee who was usually in dissent in the course of the heyday of Supreme Court docket liberalism beneath Chief Justice Earl Warren.

Justice Harlan nonetheless considered the Structure as a constitution of “ordered liberty,” the that means of which might evolve over time to embody ideas not explicitly talked about within the textual content, similar to the appropriate to privateness. David Souter noticed the Structure in the identical gentle. Solely within the more and more partisan and polarized local weather of the Nineteen Nineties and later might an interpretive stance that was as soon as so broadly held as barely debatable come to be considered because the hallmark of a judicial liberal.

To conservatives, Souter wasn’t only a “judicial liberal” appointed by a Republican president. They have been used to that, since Dwight D. Eisenhower positioned Earl Warren and William Brennan on the Court docket, and Richard M. Nixon was answerable for Roe v. Wade’s principal creator Harry Blackmun. What made Souter an everlasting cautionary story for the appropriate was his alleged “stealth” liberalism. George H.W. Bush appointed Souter principally as a result of he was assured that the comparatively obscure New Hampshire choose could be a stable selection by Granite State senator Warren Rudman, and by Rudman’s pal, White Home chief of workers John Sununu. Souter’s comparatively restricted report and public profile made him a sexy choose on the time, as fiery liberal opposition had not too long ago introduced down Ronald Reagan’s Court docket nominee, Robert Bork. Souter was simply confirmed, with each single Senate Republican voting for him.

When Souter’s liberalism, notably on abortion rights, turned obvious, the conservative fury aimed toward Bush — already a suspect determine on the appropriate for many years — was intense. However even earlier than he outraged the appropriate by serving to save abortion rights within the 1992 resolution Deliberate Parenthood v. Casey, Souter’s heterodoxy was obvious sufficient that it influenced Bush’s subsequent Supreme Court docket choose. Clarence Thomas was seen as each an applicable successor to the primary Black justice, Thurgood Marshall, and a critical ideological conservative. Thus, Souter inadvertently teed up the lengthy profession of probably the most intensely conservative justice because the nineteenth century.

The rising sense that each Bush and Souter had betrayed the conservative trigger, as a part of a lengthy sample of Supreme Court docket perfidy by GOP presidents, led to calls for for critical and clear ideological vetting of potential justices going ahead. For some time, the lengthy custom of treating judicial nominations as apolitical and even bipartisan inhibited such calls for. However “no extra Souters” turned a strong conservative rallying cry. The yearslong escalation of the appropriate’s vetting calls for culminated within the three justices appointed by Donald Trump, after he outsourced the vetting course of to the Federalist Society and the Heritage Basis.

So placing apart his particular influence on the Court docket and on constitutional regulation throughout 18 momentous years on the Supreme Court docket, David Souter was in lots of respects the final Supreme Court docket nominee from both get together who could possibly be nominated and confirmed with out intense partisan and ideological scrutiny. Souter himself could have mirrored this along with his resolution to retire from the Court docket quickly after Barack Obama was elected president, guaranteeing one other liberal (on this case, Sonia Sotomayor) joined the Court docket. It was one ultimate gesture of quiet defiance to the conservatives who made his title a curse.