Nobody seemed to ask Souter if he was interested in such a role in American legal history, however, and when given the opportunity to play it, he declined. Roe v. Wade survived an additional 29 years—more than half of its ultimate lifespan—solely because he defied expectations by not voting to overturn it in 1993. The counterrevolution was not stopped, but it struggled for another two decades until more loyal foot soldiers could be found. Souter was not the most influential or powerful justice of his era, but he may be the one most essential to understanding the court today.
The Constitution, Souter told a class of Harvard graduates in 2010, was not a document that could be read in terms of absolutes or clear meanings but a “pantheon of values” that had to be understood—even if not perfectly shared—by each generation. The constitutional requirement that senators be 30 years old is easy to interpret, he conceded. But most of the text defied the popular understanding that deciding cases was a “straightforward exercise of reading fairly and viewing facts objectively.”
Souter spent his life as a priest of sorts in the American civic faith, enjoying a semi-ascetic life without a spouse or children. Washington, D.C., with its elbow-rubbing, peacocking social culture, was never a good fit for him. When he retired, he first sought to live in his family farmhouse in Weare, New Hampshire, but had to purchase a new place in a quiet nearby town for a very Souterian reason: The two-story farmhouse could not structurally support the weight of the thousands of books that he owned.
“His whole life was being a judge,” Toobin wrote. “He came from a tradition where the independence of the judiciary was the foundation of the rule of law. And Souter believed Bush v. Gore mocked that tradition. His colleagues’ actions were so transparently, so crudely partisan that Souter thought he might not be able to serve with them anymore.” Only at the behest of “a handful of close friends” did he decide against resigning in protest.
Souter, by that point, had already announced his retirement from the court at the end of its 2008–2009 term, having barely waited a few months into Barack Obama’s first term before bolting for the door. He was assigned to write the original main dissent in Citizens United, and while it has never been made public, Souter’s draft was reportedly an uncharacteristic barn burner by the mild-mannered departing justice.
It was a symbolically potent finale for Souter’s tenure. His nomination came at a pivotal time in the Supreme Court’s history. After decades of dominance, conservatives did not control the Supreme Court for most of the mid-to-late twentieth century. Franklin D. Roosevelt had appointed all nine sitting justices over his 12-year presidency by the time he died in 1945. Democrats held the White House for all but eight of the next 24 years.
But the river turned after 1968. Richard Nixon managed to appoint four justices in his first term, ending the court’s liberal era and placing its moderates in control. Ronald Reagan’s administration, particularly the Justice Department under Edwin Meese, became a launching pad for many legal conservatives. As the Warren-era liberals died or retired, they hoped to replace them with justices committed to originalism, the conservative legal movement’s preferred method for constitutional interpretation.
The nature of Supreme Court nominations had also changed significantly. New Deal liberalism’s political dominance in the 1950s and 1960s had translated into the legal profession. Shifting that tide required immense energy and funding. The conservative legal movement’s initial coalition read like a roster of those who’d lost out in the Warren era: ex-segregationists who opposed further expansions of civil rights laws, cultural conservatives who lamented the end of prayer and Bible study in public schools, tough-on-crime politicians who chafed at broad interpretations of the Fourth Amendment, and corporate leaders who resented unions and regulations.
Legal conservatives to this day insist that Bork was unfairly maligned by liberal senators during the process. But Bork’s greatest enemy may have been himself. The outspoken legal scholar had opined on a wide range of constitutional issues over the years: He had denounced Roe v. Wade as “a serious and wholly unjustifiable judicial usurpation of state legislative authority,” rejected the notion that there was a right to privacy in the Constitution, and opposed the passage of the Civil Rights Act of 1964. (He later said he had changed his mind on the last one.)
Legal conservatives were uneasy with Souter, especially after he declined to publicly endorse originalism during his confirmation hearing, but their doubts were dismissed by Bush and two close New Hampshire allies, chief of staff (and former New Hampshire governor) John Sununu and Senator Warren Rudman. Souter largely voted with the court’s conservatives during his first few years on the bench but started to drift leftward after he found his footing. His vote to save Roe v. Wade in the 1993 case Planned Parenthood v. Casey proved to be the final breaking point.
I do not know how Souter felt about his name being used as a derisive epithet. After his retirement, he made almost no public appearances, aside from serving again on the First Circuit Court of Appeals. (Supreme Court justices are allowed to hear cases in lower appeals courts after they retire, and he apparently relished the opportunity to do so.) I tried to interview him a few times over the years to no avail; his clerks made clear he was done with all that. In an era when the Supreme Court’s conservative majority is inventing “presidential immunity” out of constitutional thin air and clearing the path for insurrectionists to hold public office, I would hope that he took their battle cry of “No More Souters” as a badge of honor.
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