David H. Souter (born 1939), a New Hampshire state attorney and state supreme court judge, was appointed to the U.S. Supreme Court in the fall of 1990 as the 105th justice in the nation's history.
David H. Souter was born on September 17, 1939, in Melrose, Massachusetts. At age 11, Souter and his parents moved to Weare, New Hampshire, near Concord, where his father, a banker, could lead a slower-paced life necessitated by a heart condition. Souter was a lifelong bachelor and lived with his widowed mother until she entered a nursing home several years before his nomination to the U.S. Supreme Court. He was still living in the family's farmhouse in Weare when President George Bush plucked him from obscurity to place him on the nation's highest court in 1990.
By educational background, Souter seemed a worthy candidate for the U.S. Supreme Court. He attended public elementary schools and Concord High School, where he was elected president of the National Honor Society and was voted "most literary," "most sophisticated," and, prophetically, "most likely to succeed." He entered Harvard College in 1957 and majored in philosophy, writing his senior honors thesis on the jurisprudence of Justice Oliver Wendell Holmes. After graduating magna cum laude and Phi Beta Kappa, he won a Rhodes scholarship to attend Magdelan College at Oxford University, where he studied law and philosophy for two years. In 1963 he enrolled in Harvard Law School, from which he received his LL.B. degree where he reportedly did well, but failed to make the law review.
Graduating from Harvard Law in 1966, Souter returned home to Weare and began his legal career in the Concord law firm of Orr & Rena. He found private practice unsuited to his tastes, however, and turned to the public sector. In 1968 he joined the staff of the New Hampshire attorney general. Warren Rudman, who was destined to become a senator from the Granite State and who would play a key role in supporting Souter's eventual U.S. Supreme Court nomination, became attorney general of New Hampshire in 1970 and promoted Souter to be his top aide. Rudman resigned as attorney general in 1976 and persuaded Governor Meldrim Thomson to name Souter as his successor.
In his two-year service as state attorney general, from 1976 to 1978, Souter personally argued several controversial religion cases. In one, he defended Governor Thompson's desire to fly the American and state flags at half-staff on Good Friday. He also defended the state's attempts to prosecute residents who for religious reasons covered up the state motto—"Live Free or Die"—on their license plates. The state was unsuccessful in both cases.
Nevertheless, Souter's service was rewarded by a judicial appointment to the state superior court in 1978. He served there for five years before Governor John Sununu, who would become President Bush's chief of staff, named him to the New Hampshire Supreme Court in 1983. In the spring of 1990 President Bush nominated Souter to the U.S. Court of Appeals for the First Circuit in Boston. He had yet to write an opinion for that court, or indeed even be assigned an office, when the president made his surprise announcement nominating him to the U.S. Supreme Court on July 23, 1990.
Justice William Brennan's retirement from the seat that Souter was named to fill had been equally surprising. Although Brennan was 84, he had remained a vigorous member of the Court through its 1989-1990 term. Indeed, he had fashioned slim, but victorious, majorities for the dwindling liberal bloc in his last contentious cases involving flag-burning and affirmative action. Yet Justice Brennan had suffered a slight stroke early in the summer of 1990 and his physician urged him to retire. He did so reluctantly, citing the incompatibility of the burdens of the Court with his fragile health.
President Bush vowed to make quick work of the selection process for Brennan's replacement. The administration had compiled a list of potential nominees during Bush's first year in office, and his advisers turned to it as deliberations began immediately after Brennan sent his letter of resignation to the White House. Within three days Bush had his man. He passed over the runner-up, Judge Edith Jones of the Fifth Circuit Court of Appeals in Texas, for the less-well-known Souter. In the aftermath of the denial of Judge Bork's nomination to the high court because of his staunchly conservative paper trail, Souter's very obscurity was the overwhelming deciding factor in his favor.
Yet Souter's past did contain several clues to his jurisprudence. In a 1986 dissenting opinion on the New Hampshire Supreme Court, Souter wrote that "the court's interpretive task is to determine the meaning of [constitutional language] as it was understood when the framers proposed it." On one of the most controversial issues of the day—abortion—Souter also expressed a restraintist position toward procedural aspects of judging, even if his personal and professional views on the topic were unknown. As a superior-court judge in 1981, Souter wrote a letter to the state legislature to argue for the rejection of a provision of a bill that would have required teenagers seeking abortions to obtain permission from a judge if they could not get their parents' consent. Souter maintained that the provision "would express a decision by society, speaking through the legislature, to leave it to individual judges … to make fundamental moral decisions about the interests of other people without any standards to guide the individual judge…."
Souter's nomination cleared the Senate Judiciary Committee by a vote of 13 to 1. The full Senate was equally favorable, approving Souter by a vote of 90 to 9. The new justice was sworn in October 9, 1990, and began work on the fall term of the Court almost immediately. (A second new justice took a seat on the Supreme Court for the 1991 fall term when Justice Thurgood Marshall resigned because of failing health and was replaced by Clarence Thomas).
As a Justice, Souter focused on legal process in many of his decisions. In his dissent of Missouri v. Jenkinshe began with: "The Court's process of orderly adjudication has broken down in this case," Some critics claimed that his focus on process was an attempt to flee substance. Important opinions written by Souter included issues related to free speech and separation of church and state in Rosenberger v. University of Virginia (free speech and a student run newspaper) and Lee v. Weissman (separation of church and state).
Because of David Souter's relatively obscure background, there was no major studies of his life and career. Time magazine (August 5, 1990) and the New York Times (July 25, 1990) offered detailed journalistic analyses of Souter. For the voting in the Judiciary Committee and later the full Senate see the Washington Post ( September 27 and October 2, 1990). Other articles on Souter have appeared in Rocky Mountain News July 25, 1993) and The Courier-Journal, Louisville, KY (March 21, 1993). Reviews of Souter's performance as a Justice can be found in legal and political journals such as Almanac of the Federal Judiciary and Policy Review. □