http://www.latimes.com/news/nationworld/nation/la-na-souter4-2009may04,0,4695798.story?page=2
From the Los Angeles Times
Justice Souter: A man of tradition, and surprises
David H. Souter was appointed by a GOP president but
ended up being called a liberal. Legal experts assess his legacy.
By David
G. Savage
May 4, 2009
Reporting from 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.
"He likes old things: furniture, the old Episcopal prayer
book, old friends like me," said John McCausland, the vicar of Holy Cross
Episcopal Church in Souter's hometown of Weare, N.H. The two have been friends
for 50 years.
When Souter announced his retirement Friday, the reactions
were the mirror opposite of those seen at the time of his nomination. Women's
rights groups and liberal activists who had fought his confirmation in 1990
praised him as a principled judge.
"Countless women across this country
owe him a debt of gratitude," said Marcia Greenberger, co-president of the
National Women's Law Center.
Republicans who had rallied behind him then
politely thanked him for his service and wished him well in retirement. Others
were more scathing. "Souter has been a terrible justice," said Edward Whelan,
writing
for the conservative National Review.
On the other side, Sen. Patrick
J. Leahy (D-Vt.) saw the virtues of a fellow New Englander. "Justice Souter fits
the independent Yankee mold. Throughout his career, he has been committed to the
law and not to ideology," he said.
When word leaked out last week that
Souter
intended to retire, he refused to comment. Instead, he met with his
colleagues in their regular Friday morning conference and then sent President
Obama a two-sentence letter.
"When the Supreme Court rises for the summer
recess this year, I intend to retire from active service as a justice," he
wrote, citing the provision in law that permits him to retire with a
pension.
After speaking with Souter by phone, Obama said: "Justice Souter
has shown what it means to be a fair-minded and independent judge. He came to
the bench with no particular ideology. He never sought to promote a political
agenda.
"He approached judging as he approaches life," the president
said, "with a feverish work ethic and a good sense of humor, with integrity,
equanimity and compassion -- the hallmark of not just being a good judge, but of
being a good person."
david.savage@latimes.comJames
Oliphant in the Washington bureau contributed to this report.
Copyright 2009 Los Angeles Times