Souter known as low-key, fierce defender of individual rights
WASHINGTON (CNN) -- David who? was the initial reaction of Americans to a little-known judge from New Hampshire named in 1990 to sit on the nation's highest court. Even the nominee didn't know what to think when President George H.W. Bush called him with the news, telling supporters, "I was in a state of virtual shock."
Conservatives say Supreme Court Justice David Souter, nominated by a Republican, was a dissapointment.
Conservatives say Supreme Court Justice David Souter, nominated by a Republican, was a dissapointment.
David Hackett Souter had only been on a federal appeals court bench for a few months when he was tapped to replace liberal lion William Brennan, a choice many Republicans hoped would move the high court rightward and reshape American law.
"I think that is good news for all of us who are committed to the Constitution of the United States," said President Bush. "He'll be a superb justice for the Supreme Court."
In reality, Souter was in many ways a typical, old-fashioned Yankee Republican -- a moderate with an independent, even quirky streak. Whether he became more liberal in his views after joining the Supreme Court, as many conservatives believe, may depend on your politics.
"Justice Souter will never escape the label of having been an enormous disappointment, a traitor to the right," said Thomas Goldstein, a Washington appellate attorney and founder of Scotusblog.com. "It instead created the opportunity to entrench a series of more liberal rulings. So he became the right's greatest failure and we will forever hear the mantra 'No More Souters' from conservatives."
Colleagues dismiss suggestions that liberal colleagues on the bench helped move Souter to the left.
"I find that incredibly unbelievable," said Rebecca Tushnet, a former Souter law clerk and professor at Georgetown Law Center. "He was faced with different issues on the Supreme Court than he was as a state official. A Supreme Court justice requires you to make different decisions, ones that aren't always consistent with your politics. And remember the Republican Party of Nixon is a different party than the one we have today, and we have a number of judges who came out of that earlier Republican Party who may not be in line with the priorities of people in power in Republican circles today."
The stealth candidate
Souter had a long career in public service. He was New Hampshire's attorney general and a trial judge who later sat on the state's supreme court.
Senate confirmation hearings to the high court were a breeze, because his federal experience was brief and his public stance on hot-button issues like abortion remained fuzzy.
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"I have not got any agenda on what should be done with Roe v. Wade if that case were brought before me," he told senators. "I will listen to both sides of that case. I have not made up my mind."
That didn't stop women's rights groups from sounding the alarm. At rallies during his confirmation, abortion rights activists held up signs opposing Souter and chanted, "This is nobody's body but mine."
Similar concern came from movement conservatives. "At the time, he was called the 'stealth candidate,' " said Douglas Kmiec, a law professor at Pepperdine University who worked on high court nominations in the Reagan and Bush administrations. "So it was tabula rasa when he showed up at the bench and it was a surprise thereafter."
One of the first "surprises" came in 1992 when the Supreme Court reaffirmed the fundamental right to abortion in "Planned Parenthood v. Casey." Souter was part of a three-justice coalition that ultimately decided the case. In doing so, the "no undue burden" legal test was established when states were considering limiting a woman's access to abortion.
"What was clear to me was that he hadn't decided that case before he heard it" at oral arguments, recalled Peter Rubin, one of Souter's law clerks that term. "The law for him, unlike many of his conservative colleagues, was not an abstract set of rules totally divorced from its effect in the real world. It wasn't just an intellectual puzzle for him."
One puzzle for Souter was technology. He famously told Congress he would allow cameras in his courtroom only "over my dead body."
He shunned cell phones and pagers, and wrote drafts of his opinions in longhand, while a court-issued computer gathered dust in his chambers. Friends laugh recalling that for years he owned only an old black and white TV that was never plugged in.
So it surprised many when in 2005 Souter wrote a landmark cyber-age ruling in the so-called "Grokster" case. The court made software companies liable for misusing their file-sharing services and allowing copyrighted material to be easily and illegally downloaded.
"I am willing to bet Justice Souter had never seen a file-sharing application," said Tushnet, who is also an expert on cyber-age legal issues. "I would stake my life he had never used one, and would never use one. And yet his opinion reflected an understanding of how it works on the technical level, and how it affects a legal analysis of whether or not the supplier of the program should be held liable for what the people who use it do with it."
Man behind the robes
Souter's personality made him stand out on the Supreme Court, despite all efforts to avoid the spotlight. A lifelong bachelor, he lived alone in a tiny Washington apartment, escaping often to his family farm in rural New Hampshire.
He kept comfortably to routine, bringing a daily lunch of an apple and yogurt in a plastic grocery bag, eating alone in his chambers. Friends -- and he had few close associates -- say his favorite pastimes were reading, jogging and hiking in the New Hampshire mountains, activities he almost always did by himself.
The thrifty Souter shunned the trappings of power and privilege that came with being a Supreme Court justice.
"People didn't know him," said Goldstein. "He didn't go to parties, he didn't do speaking events. David Souter was really an isolated individual very much by choice."
Colleagues dismiss reports Souter was ready to quit the court after the 2000 Florida ballot disputes handed the presidency to George W. Bush. But they privately confirmed what a personal blow the rulings had on the integrity of the court he loved.
"He was very aggrieved by December 12, 2000," said Ralph Neas, former director of the liberal advocacy group People for the American Way. "He believed it was the ultimate politicization of the Supreme Court."
To critics, Souter siding with the liberal bloc only reaffirmed their view of him as a disappointment.
"He has not made a name for himself in any large body of jurisprudence," said former top White House lawyer Kmiec. "He's been kind of a go-along guy, in the context of the liberal or progressive side of the court. I think George Bush wanted more out of his judicial nominee than that, but that's what he got."
But others think history will judge Souter in kinder terms:
"A judge's judge," said Tushnet, "someone with deep respect of the institution and a deep faith in the ability of Americans in all branches to work things out."
Former law clerk Rubin remembered, "That sense of responsibility, that kind of care in deciding each individual's case is a hallmark of Justice Souter, of the man and his jurisprudence."
As for Souter, a man of few words, his brief remarks at a public White House ceremony after he was sworn in as a Supreme Court justice offer a capsule of his outlook on life and the law.
"What we try to do is pass it on, to make the gifts and kindnesses that come to us the kind of human currency that goes on traveling," he said. "I will try to preserve it, transmit it, I hope refreshed, to another generation of the American republic, which is the inheritance of us all."
