David H. Souter, Republican Justice Who Allied With Court's Liberal Wing, Dies at 85.
He left conservatives bitterly disappointed with his migration from right to left, leading to the cry of “no more Souters.”
*A Low-Profile Nominee
Judge Souter was little known even in Washington legal circles when Mr. Bush introduced him to the country as his first Supreme Court nominee, in a late-afternoon television appearance on July 23, 1990. He was a 50-year-old Harvard Law School graduate and former Rhodes scholar who had been confirmed to a federal judgeship only two months earlier. He had barely moved into his chambers at the federal appeals court in Boston. . .
Justice Souter, joined by two other Republican-appointed justices, Sandra Day O’Connor and Anthony M. Kennedy, who had earlier both expressed strong doubts about Roe v. Wade, collaborated to produce a highly unusual joint opinion that reaffirmed the constitutional right to abortion. With Justices Harry A. Blackmun and John Paul Stevens joining the central parts of the opinion, the vote was 5 to 4.
The trio announced the result from the bench on the final day of the term, June 29, 1992, to a spellbound courtroom audience. They read in sequence, each summarizing the part of the opinion that he or she had contributed. Justice Souter’s portion emphasized stare decisis, Latin for “to stand by what has been decided,” or adherence to precedent. The court was under political attack for its abortion ruling, he said; the justices well knew that the decision was unpopular in some quarters. Yet many others had accepted it and relied on it; indeed, “The ability of women to participate equally in the economic and social life of the nation has been facilitated by their ability to control their reproductive lives.”
So “to overrule Roe’s essential holding under the existing circumstances,” Justice Souter continued, would come “at the cost of both profound and unnecessary damage to the court’s legitimacy, and to the nation’s commitment to the rule of law.”
It was a stunning moment that inflamed the political right . .
and appeared to have a transformative effect on Justice Souter. While the two other members of the trio, Justices O’Connor and Kennedy, drifted back and forth over the years across the court’s ideological divide, he remained firmly anchored to the court’s liberal wing, which even grew for a time when Justice Byron R. White, an opponent of Roe v. Wade, retired the next year and was replaced by Justice Ruth Bader Ginsburg.'>>>
His most bitter moment as a dissenter undoubtedly came in Bush v. Gore, the 5-to-4 decision that ended the disputed Florida recount and effectively declared George W. Bush the winner of the 2000 presidential election. He watched, appalled, as the conservatives accepted jurisdiction of the appeal filed by lawyers for Governor George W. Bush of Texas, who was ahead by a hair in the battle for Florida’s decisive 25 electoral votes and who wanted at all costs to stop the recount that the Florida Supreme Court had ordered at the behest of the Democratic candidate, Vice President Al Gore.
All four of the dissenters, Justices Ginsburg, Breyer, Souter and Stevens, wrote separate dissenting opinions while also expressing support for one another’s. Justice Souter drafted his dissent in longhand on a legal pad. In contrast to the opinion by Justice Stevens, who all but accused the majority of a cynical political act that would destroy “the nation’s confidence in the judge as an impartial guardian of the rule of law,” Justice Souter’s tone was mild. The court should never have taken the case, he said; “our customary respect for state interpretations of state law counsels against rejection of the Florida court’s determination in this case.”
But beneath that controlled surface, Justice Souter was “shattered,” Jeffrey Toobin wrote in his book on the court, “The Nine,” published in 2007. The justice’s disillusionment was such, Mr. Toobin wrote, that he could not put the episode behind him as the other dissenters managed to do. He seriously considered leaving the court. Persuaded by his friends to stay, Mr. Toobin wrote, Justice Souter never felt the same about the court or his job there. “There were times when David Souter thought of Bush v. Gore and wept,” Mr. Toobin wrote.
'>>>https://www.nytimes.com/2025/05/09/us/david-souter-dead.html