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Justice Souter: Liberal or conservative?

In 1990, the jurist was nominated by a Republican president. In 1992, a ruling to preserve Roe vs. Wade changed everything.

May 04, 2009|David G. Savage

WASHINGTON — Justice David H. Souter is a conservative man in the old-fashioned sense of the term. A frugal New Englander, he sat in his court office with the lights turned off, writing long-hand on a yellow legal pad. Those who knew him said he hated to waste electricity.

He wore the same gray suit year after year. He worked long hours, including weekends, and ate lunch at his desk: a cup of yogurt and a piece of fruit. He collected old books and revered precedents in the law. He would not watch television or use a computer. He avoided Washington parties. Instead, in the evenings, he jogged several miles near his small apartment. His summers were spent hiking in the White Mountains of New Hampshire.

It turned out, however, that this modest, reserved jurist -- who announced last week that he was retiring from the bench -- was not a true conservative by contemporary political standards.

He may not have signed onto the Roe vs. Wade decision on abortion had he been on the court in 1973, but he was unwilling to vote to overturn it after its nearly 20 years as a precedent. He believed in the strict separation of church and state, in limits on the president's power, in protecting the environment and in criminal laws that were firm but fair.

"Justice Souter was a judicial version of a disappearing phenomenon: the moderate New England Republican," said Stanford University law professor Pamela Karlan. "He was not a true liberal, and he would not have been a liberal on the court of the 1960s or 1970s. But he believed in privacy and civil rights and precedents. That made him a liberal on the court today."

Oliver Wendell Holmes once called life at the Supreme Court "the quiet of a storm center," and that description fit no justice better than Souter. He was far removed from the ideological crusades that swirled around the court. He arrived with no agenda, and he never set out an overreaching judicial philosophy.

Nonetheless, Souter had a major effect on the law.

President Reagan had set the stage for transforming what was a liberal-leaning court when in the 1980s he appointed three conservative justices and elevated William H. Rehnquist, a President Nixon appointee, to be chief justice.

In the summer of 1990, the court's 84-year-old liberal leader, William J. Brennan, suffered a stroke and announced his retirement. President George H.W. Bush surprised Washington by choosing Souter, a little-known New Hampshire judge, to replace him.

In his first year, Souter joined Rehnquist in several conservative rulings, one of which forbade doctors and nurses in federally funded clinics from discussing abortion with their patients.

Then Justice Thurgood Marshall retired in 1991, and Bush chose Clarence Thomas, a 43-year-old black conservative, to replace him.

With Republican appointees holding eight seats, Rehnquist was set to move the law toward the right. (At the Justice Department, Bush's solicitor general, Kenneth W. Starr, and his top deputy, John G. Roberts Jr., filed briefs urging the court to do just that.)

But Souter balked.

The conservative counter-revolution was halted when he in effect switched sides, just as his colleagues were set to roll back liberal rulings on civil rights, abortion and religion.

When it looked in the spring of 1992 that the majority would vote to again allow states to ban abortion, Souter wrote what he expected to be a dissent and explained why the court should stick with its precedents. He knew Justice Sandra Day O'Connor agreed with him. And to their surprise, so did Justice Anthony M. Kennedy, a Reagan appointee.

By late June, they had drafted a joint opinion to preserve the Roe vs. Wade ruling. Justices John Paul Stevens and Harry Blackmun, Republican appointees from the 1970s, joined them to make a 5-4 majority, dealing Rehnquist an unexpected defeat.

Souter never returned to the conservative fold. He sharply dissented, along with Stevens, when the Rehnquist court limited the federal government's power to protect rights for women and workers with disabilities. By the mid-1990s, he regularly voted with Stevens and the two Democratic appointees: Justices Ruth Bader Ginsburg and Stephen G. Breyer.

Souter was taken aback to see himself referred to as one of the court's "liberals."

Among conservatives, he was seen as a betrayer. In recent years, when President George W. Bush had vacancies to fill, their slogan was: "No More Souters."

Friends and former clerks, however, say it is a mistake to think Souter had a liberal conversion after joining the high court.

"They had a mistaken idea of what they were getting" when he was selected, said Kermit Roosevelt, a University of Pennsylvania law professor who clerked for Souter. Though a former prosecutor and state judge in New Hampshire, Souter was never a conservative activist or a cultural warrior, Roosevelt said.

He was, however, a man of tradition.

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