Souter appears set to leave high court

Justice votes with liberal bloc

Souter was picked in 1990. Souter was picked in 1990.
By Peter S. Canellos and Milton J. Valencia
Globe Staff / May 1, 2009
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WASHINGTON - David Hackett Souter, the intensely private New Hampshire jurist who emerged on the Supreme Court as a crucial defender of abortion rights and the separation of church and state, is retiring from the high court, according to news reports last night.

Souter's retirement would give President Obama an early chance to begin reshaping the Supreme Court, but an Obama appointee would be unlikely to alter the court's ideological balance. Though he was appointed by Republican President George H. W. Bush in 1990, Souter has voted among the court's liberal bloc in recent years.

The White House and Supreme Court did not comment last night, and efforts to reach Souter were unsuccessful.

At 69, Souter is only the sixth-oldest justice and believed to be in good health, but he has often expressed his lack of interest in Washington, where he was once injured in a mugging. He had been the only justice not to pick clerks for next fall's term, fanning rumors that he was on the verge of retirement.

Longtime court watchers have speculated that if Obama made an early pick for the Supreme Court, he would look seriously at appeals-court judges Diane Wood, a 58-year-old Bill Clinton appointee who, like Obama, taught at the University of Chicago Law School.

Other names thought to be on Obama's short list include former Harvard Law School Dean Elena Kagan and former Yale Law School Dean Harold Hongju Koh, both of whom have been appointed to positions in Obama's administration. Massachusetts Governor Deval Patrick, a former assistant US attorney general, has also been mentioned as a possible Supreme Court candidate. All are liberals who would vote like Souter on most of the court's social issues, while being to his left on criminal procedures and other matters. A spokesman for Patrick was not available for comment this morning.

New Hampshire leaders last night portrayed Souter as a flinty independent who approached cases with unusual rigor and integrity.

"I think when somebody's appointed to the Supreme Court, you look for somebody who's a great judge, who works their hardest to get it right, and is as free of bias as they can humanly be, and I think David Souter has done an outstanding job at that," said Steve Duprey, the former chairman of the New Hampshire state Republican Party who first met Souter when the future justice was a deputy state attorney general.

"Different people have different opinions about whether he was conservative enough," Duprey added.

Scholarly and shy, Souter had not expressed public opinions on abortion rights or many other hotly contested social issues at the time of his Supreme Court appointment, though the Bush White House reassured conservatives that Souter, who had spent seven years on the New Hampshire Supreme Court but less than one on the federal appeals court, would vote with them.

Two years later, after long deliberations, Souter cast key votes reaffirming the Roe v. Wade decision and outlawing prayer at public-school events, angering many of his conservative backers but winning an enduring reputation among liberals as a man of conscience.

"Souter grew into the job and became one of the most distinguished jurists of his era for his analytical rigor and his fair-mindedness," Martin Flaherty, a constitutional-law professor at Fordham University Law School, said last night.

During his confirmation hearings, Souter expressed the belief that justices must look to the original intent of the framers of the Constitution when interpreting the law. Such beliefs are usually the province of conservatives who reject the so-called right to privacy, the basis for abortion rights, as a judicial creation that was never intended by the framers.

But Souter voted to uphold many liberal court precedents of the 1960s and 1970s while maintaining his belief in original intent: His interpretation of the intention of the framers sometimes differed from that of fellow Associate Justice Antonin Scalia, the court's reigning conservative. The two often sparred in their opinions over the proper interpretation of legislative history and the opinions of the framers.

"Justice Souter was very concerned with the origin of the law and its development over the years, and was aware that historical analysis doesn't always lead to conservative outcomes," said University of Pennsylvania law professor Kermit Roosevelt, who clerked for Souter in 1999 and 2000.

"Some of his best opinions were dissents and I had hoped he would stay on the court long enough to see some of those become majority decisions," Roosevelt said last night.

Nonetheless, Souter's tenure will be most remembered for his vote in the 1992 decision of Planned Parenthood v. Casey, which preserved abortion rights at a time when many believed the court would overrule the hotly contested Roe v. Wade.

Souter joined with fellow Republican appointees Sandra Day O'Connor and Anthony Kennedy to reaffirm the "essential holding" of Roe while allowing some new restrictions on abortion rights. Their compromise position, combined with the full support for Roe by liberal justices Harry Blackmun and John Paul Stevens, preserved abortion rights by a single vote. Four conservative justices dissented.

Like some justices, Souter became more liberal over time, dissenting on the Bush v. Gore decision and waiting until the end of George W. Bush's presidency to leave the court, ensuring that Obama chooses his replacement.

Though considered a bit of a loner, Souter also gained a reputation for his dry wit and unpretentious manner. Roosevelt, his former clerk, said Souter would often have coffee with his underlings and regale them with tales of New Hampshire.

Born in Melrose, Mass., in 1939, Souter moved as a young child to the Granite State and made it his lifelong home.

He returned to New Hampshire after Harvard College and Harvard Law School, with a year in England at Oxford University as a Rhodes Scholar in between.

"One of the great things about David Souter is he didn't let the experience of being a justice on the US Supreme Court change him one bit," said Duprey. "When he comes back to New Hampshire in the summer it's just David Souter, and you're likely to see him shopping downtown or at an event at the historical society. I think that's remarkable. He didn't let the experience of serving on the nation's highest court change the down to earth guy that he is."

Lisa Wangsness of the Globe staff contributed to this report.