Justice David Souter’s Supreme Court legacy

The Supreme Court announced on Friday that retired Associate Justice David H. Souter has died at the age of 85 at his residence in New Hampshire. Souter left the bench in 2009, and his term was marked by several noteworthy decisions and a perceived shift in his voting patterns.

In a statement, Chief Justice John Roberts said of Justice Souter: “Justice David Souter served our Court with great distinction for nearly twenty years. He brought uncommon wisdom and kindness to a lifetime of public service. After retiring to his beloved New Hampshire in 2009, he continued to render significant service to our branch by sitting regularly on the Court of Appeals for the First Circuit for more than a decade. He will be greatly missed.”

President George H.W. Bush appointed Souter to the Supreme Court in 1990. Souter replaced Justice William J. Brennan. He retired in 2009, after serving more than 19 years on the Court.

Justice Souter’s Opinions

In Washington v. Glucksberg (1997), Souter concurred with the Court’s unanimous opinion in a case about the state of Washington’s ban on physician-assisted suicide, which overturned a lower ruling striking down the law as unconstitutional. “We therefore have a clear question about which institution, a legislature or a court, is relatively more competent to deal with an emerging issue as to which facts currently unknown could be dispositive. The answer has to be, for the reasons already stated, that the legislative process is to be preferred,” Souter wrote in his concurrence.

Souter also clearly delineated the boundaries between church and state in Hurley v. Irish-American Gay, Lesbian, and Bisexual Group of Boston (1995). The city of Boston authorized a council to coordinate the St. Patrick’s Day Parade; the council denied approval for the Irish American Gay, Lesbian, and Bisexual Group of Boston (GLIB) to participate in it. The Massachusetts State Court ordered the council to include GLIB, but a unanimous Supreme Court held that requiring private citizens organizing a public parade to include a group expressing a message the organizers did not want to convey violated the organizer’s First Amendment rights. Writing the Court’s majority opinion, Souter concluded: “Disapproval of a private speaker’s statement does not legitimize use of the Commonwealth’s power to compel the speaker to alter the message by including one more acceptable to others.”

In Planned Parenthood v. Casey (1992), Souter joined Justices Sandra Day O’Connor and Anthony Kennedy in writing the controlling plurality opinion that upheld Roe v. Wade (1973). And in Bush v. Gore (2000), Souter joined the Court’s 7-2 majority in agreeing that the Florida Supreme Court’s method for recounting ballots in the presidential election was unconstitutional. But Souter disagreed with the 5-4 majority that had held time had run out for another recount. “Unlike the majority, I see no warrant for this Court to assume that Florida could not possibly comply with this requirement before the date set for the meeting of electors, December 18,” he wrote.

Souter was also criticized by conservative observers for voting with the Court’s liberal wing in decisions such as Lee vs. Weisman (1992), which held that clergy offering prayers at official public school ceremonies violated the First Amendment; Kelo v. New London (2005), which held that a city’s taking of private property to sell for private development qualified as a “public use” within the meaning of the Fifth Amendment’s takings clause; and McCreary County vs. ACLU of Kentucky (2005), which held that Ten Commandments displays in public schools and courthouses violated the Establishment Clause. However, he wrote the majority opinion in Exxon Shipping Co. v. Baker (2008), where Souter joined the Court’s conservative wing to reduce the $2.5 billion verdict in the Exxon Valdez case to $500 million.

Souter received an A.B. degree from Harvard College, and went on to become a Rhodes Scholar at Magdalen College, Oxford University. After attending and graduating from Harvard Law School, he served in private practice briefly, and then in the Attorney General’s office in New Hampshire, eventually becoming Attorney General in 1976. In 1978, he was named an Associate Justice of the Superior Court of New Hampshire, and was appointed to the Supreme Court of New Hampshire as an Associate Justice in 1983. He became a judge on the U.S. Court of Appeals for the First Circuit on May 25, 1990. After his confirmation to the Supreme Court in 1990, he served on the Court for more than 19 years.

During his retirement, Souter heard cases on the First Circuit, and he participated in civics education curriculum reform efforts.

Scott Bomboy is the editor in chief of the National Constitution Center.