On his way out

News reports suggest that U.S. Supreme Court Justice David Souter, whom President Bush (“Poppy”) promised would be a conservative stalwart but turned out to the court’s second most liberal justices on many issues, will step down in June. A New Hampshire native connected with then White House chief of staff John Sununu, Souter, a bachelor, faced questions – though rarely explicit – about his sexual identity. (In hindsight, Souter’s nomination won Senate confirmation in part because as a lower-court judge, state court judge, and New Hampshire attorney general he had issues almost no controversial opinion.) Souter, only 69 (young by current Supreme Court standards) apparently never liked the Washington social scene. Souter cast one of the deciding votes in the landmark 1992 moderately pro-abortion rights ‘Casey vs. Reproductive Health Services” decision – which he helped read from the bench and probably in hindsight stopped some anti-abortion advances for good – which helped frame my dissertation research.

(Although Justice Souter has been no friend of the rights of the accused, he has continued to vote liberally in other matters, siding with the losers in the election imbroglio case that made the son of the man who appointed him (George W. Bush) the president. Souter was apparently so disgusted with the clear political partisanship and lack of intellectual integrity of the "Bush vs. Gore" decision that he considered resigning. Souter is apparently not close personally with his more conservative Republican colleagues on the court, and he has not been particularly impressed with their intellectual rigor - and this may have influenced him in deciding when to retire.)

Many Supreme Court justices, who have lifetime appointments, resign in some way to maintain their legacy. Justice Souter’s resignation is like that of Justice Harry Blackmun, author of the 1973 pro-abortion rights “Roe vs. Wade” decision, in that Blackmun (like Souter, a Republican) chose ideology over party and chose to resign soon after the election of a moderately liberal Democratic president (Bill Clinton) whose ideological leanings were closer to his own. (Justice Byron White, a diehard but sometimes conservative Democrat, opted for party over ideology, also waiting until President Clinton’s election.) Souter apparently went for ideology, and – unless President Obama faces problems from moderate Democrats in the Senate – President Obama will replace him with another moderate liberal (but – more likely – a Democrat - although picking a moderate Republican would be an interesting move for a president who tried - and failed - to appoint a third Republican/independent to his Cabinet).

-- Perry