Mr. Souter Went to Washington: Revisiting the Former Justice’s Legacy

By Shannon Alvino 

Shannon Alvino is a  junior at The George Washington University studying Political Science and Criminal Justice.

Enigmatic personalities have long occupied the nine seats before the regal red curtain, from the “savagely sarcastic” Justice James McReynolds who physically turned his back on women arguing before the Court and used a servant in lieu of a bird dog while hunting [1] to the RV-piloting, stare decisis-shirking “nut,” Justice Clarence Thomas. [2] No justice, however, has confounded the executive branch, his colleagues, and the public more than Justice David Hackett Souter, the infamous Republican apostate.

At the urging of prominent New Hampshirites, President George H. W. Bush nominated the cerebral New Englander to replace Justice William J. Brennan Jr. on the U.S. Supreme Court. A “stealth” candidate, Souter refrained from taking public stands on contentious judicial issues du jour and was expected to toe the contemporary Republican party line. These predictions proved true during Souter’s inaugural term on First Street; however, on the first Monday of October, it was clear Washington underestimated the apple-core-and-seeds-munching, cell-phone-free jogging aficionado. [3]
 
Souter imported not only an array of eccentricities but also a unique judicial philosophy that, unlike his eight coworkers, does not neatly comport with the Democrat-Republican divide. Like Learned Hand and John Marshall Harlan II, Souter believeds that the law exists to preserve societal stability and that a close adherence to precedent ensures a limited, predictable judiciary. According to him, Judges should act as a “silent steward of judicial tradition,” placing a premium on the rule of stare decisis and common law. [4]

Three cases came before the Court that proved to be Rorschach tests for Souter, providing opportunities to exemplify his distinct jurisprudence that was marked by judicial restraint and partisan antipathy. In Planned Parenthood of Southeastern Pennsylvania v. Casey (1992), Souter stressed stare decisis in assessing abortion’s constitutional weight and detested its contested political nature as he joined Justices O’Connor and Kennedy in a clandestine troika. He was selected to overturn volatile Roe v. Wade; instead he carefully preserved the decision, destabilizing the conservative revolution his appointment was intended to buttress. [5]  

​Again, Bush v. Gore (2000) notoriously invaded Souter’s notion of an insulated judicial island. He championed judicial independence as the bedrock of the rule of law and felt Bush v. Gore scorned that tradition. His colleagues’ behavior was so coarsely partisan that Souter entertained premature retirement. [6] He remained on the bench and later penned his pièce de résistance, MGM Studios, Inc. v. Grokster, Ltd. (2005). In a technical, high-stakes case, Souter succeeded in uniting the Court behind his apolitical opinion, curbing peer to peer sharing networks, bolstered by support from both the left and right. [7]
 
When extolling the far-flung rewards of Souter’s tenure (to conservatives’ chagrin), one could point to his refreshing penchant for restraint and integrity. Or his admirable ability to feel comfortable with himself and even derive a sense of enjoyment from his inimitable place among his eight colleagues. Souter brought an unrivaled humanity, meticulousness, and veracity to First Street that should act as an exemplum inside and outside Cass Gilbert’s marble columns for years to come. However, Justice Souter’s legacy finds new, broader resonance within the current political climate. His limited judiciary and distaste for the political prove prescient in an era where a newly elected President threatens to abandon forty-four years of precedent and a Supreme Court nominee was not afforded an up-or-down vote. In October of 2016, Rachel Maddow highlighted a 2012 appearance Souter made in his home state and its clairvoyant nature rapidly accrued popularity. The justice stated, “What I worry about is that when problems are not addressed, people will not know who is responsible. And when the problems get bad enough … some one person will come forward and say, ‘Give me total power and I will solve this problem’ … That is how democracy dies.”

Invoking images of the fall of the Roman republic, one cannot help but bite their nails as an Augustus-esque leader moves into Pennsylvania Avenue, propelled by his lofty promises to better the nation. In eulogizing Gerald Gunther, Souter could have been espousing autobiography, “The lesson has been passed along to us by a man who came to America in a perilous time, and it has the capacity to encourage us now in our own time of peril, with our safety threatened and our constitutional sense of ourselves debated.” [8]


[1] Clymer, Adam, “Among the Cave Dwellers: The Forgotten Memoir of John Knox,” New York Times, October 6, 2002, accessed January 31, 2017, http://www.nytimes.com/2002/10/06/books/among-the-cave-dwellers.html
[2] Toobin, Jeffrey. The Nine: Inside the Secret World of the Supreme Court. (New York, Anchor Books, 2007), 120.
[3] Toobin, Jeffrey. 51-52.
[4] Toobin, Jeffrey. 62.
[5] Toobin, Jeffrey. 58.
[6] Toobin, Jeffrey. 208
[7] Toobin, Jeffrey. 286
[8] Souter, David H, “Gerald Gunther,” Stanford Law Review 55.3 (2002): 636.

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