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David Hackett Souter - Opinions In The Early 2000s, Further Readings

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David Hackett Souter was appointed to the U.S. Supreme Court on July 25, 1990, by President GEORGE H. W. BUSH. Chosen by the Bush administration because of his conservative judicial style, Souter has proven to be a moderate justice whose personality and temperament have enabled him to build a centrist coalition that has garnered support from the Court's ideological extremes.

Souter was born on September 17, 1939, in Melrose, Massachusetts, six miles north of Boston. The only son of Joseph Souter, a bank manager, and Helen Souter, a gift store clerk, the future associate justice was remembered by his childhood friends as an intense, intelligent, and family-oriented person who was endowed with a sharp wit, but no athletic ability. At age eleven Souter and his parents moved to a ten-acre farm in the rural community of East Weare, New Hampshire.

In 1957 Souter graduated second in a class of two hundred at Concord High School where his classmates named him the most literary, most sophisticated, and most likely to succeed. During high school Souter was named president of the National Honor Society and coeditor of the yearbook. According to legend, the only time Souter got into trouble as a teenager was when he stayed past closing time at the local historical society.

After high school Souter attended Harvard University. Graduating magna cum laude with a philosophy major in 1961, Souter was inducted into Harvard's prestigious chapter of Phi Beta Kappa, considered by many to be the nation's highest undergraduate academic award. Souter wrote his senior thesis on Supreme Court Justice OLIVER WENDELL HOLMES JR., which helped him earn a Rhodes Scholarship to study at Oxford University, where he received a bachelor's degree in JURISPRUDENCE in 1963.

Upon returning to the United States, Souter entered Harvard Law School, quickly developing a reputation as a serious student and an independent thinker. However, Souter was not prone to debate issues with his peers or volunteer in class. Although Souter was a solid law student, he graduated without academic honors and was not chosen for a place on the Harvard Law Review, Harvard's esteemed legal journal, which was a highly coveted position among the students.

In 1966 Souter joined Orr and Reno, a leading New Hampshire firm that handled corporate, probate, tax, and FAMILY LAW cases. Not feeling sufficiently challenged or stimulated by private practice, Souter went to work for the New Hampshire attorney general, ascending from assistant attorney general in 1968 to deputy attorney general in 1971 to attorney general in 1976. Souter did very little prosecuting during his tenure with the attorney general's office, directly handling only nine cases in ten years.

In 1978 Souter was appointed to the bench as a superior court judge in New Hampshire. Attorneys who appeared before Souter described him as an even-handed trial judge with a penchant for detail. Five years later Souter was elevated to the New Hampshire Supreme Court, where he authored more than two hundred opinions and established himself as an assertive judge who often questioned lawyers during oral arguments.

In February 1990 President Bush appointed Souter to the U.S. Court of Appeals for the First

David H. Souter.
SUPREME COURT HISTORICAL SOCIETY

Circuit. Five months later, before Souter had written his first opinion as a federal judge, Bush appointed Souter to the U.S. Supreme Court. Subsequently confirmed by a Senate vote of 90–9, Souter became the 105th jurist to serve on the nation's highest court.

Souter disappointed those in the Bush administration who hoped he would provide the decisive fifth vote for the conservative wing of the Court, comprised of Chief Justice WILLIAM H. REHNQUIST and Associate Justices ANTONIN SCALIA, CLARENCE THOMAS, and SANDRA DAY O'CONNOR. Instead, Souter proved to be a temperate justice, with a mainstream judicial philosophy. He took some positions that upset conservatives and other positions that upset liberals.

"[I]N THE FIELD OF STATE CONSTITUTIONAL LAW … IF WE PLACE TOO MUCH RELIANCE ON FEDERAL PRECEDENT WE WILL RENDER THE STATE RULES A MERE ROW OF SHADOWS; IF WE PLACE TOO LITTLE, WE WILL RENDER STATE PRACTICE INCOHERENT."
—DAVID H. SOUTER

Souter offended liberals when he voted to uphold federal regulations that prohibited doctors from providing ABORTION counseling at federally funded clinics, despite objections that such regulations violated the FIRST AMENDMENT (Rust v. Sullivan, 500 U.S. 173, 111 S. Ct. 1759, 114 L. Ed. 2d 233 [1991]). Some liberals were again dismayed when Souter voted to affirm a state ban on nude dancing in Barnes v. Glen Theatre, 501 U.S. 560, 111 S. Ct. 2456, 115 L. Ed. 2d 504 (1991), even though four dissenting justices said the ban violated freedom of expression. Souter also regularly votes in favor of CAPITAL PUNISHMENT.

On the other hand, many conservatives were distraught by Souter's concurring opinion in LEE V. WEISMAN, 505 U.S. 577, 112 S. Ct. 2649, 120 L. Ed. 2d 467 (1992), which relied on the Establishment Clause of the First Amendment to declare unconstitutional a nonsectarian prayer delivered by a clergyman at a public high school graduation ceremony. In ROMER V. EVANS, 517 U.S. 620, 116 S. Ct. 1620, 134 L. Ed. 2d 855 (1996), Souter joined the Court's majority opinion that relied on the EQUAL PROTECTION CLAUSE of the FOURTEENTH AMENDMENT to strike down a Colorado constitutional provision prohibiting all legislative, executive, and judicial action designed to protect homosexuals from discrimination. Many conservatives were also upset when Souter voted to invalidate the male-only admissions policy at the University of Virginia Military Institute because it discriminated against women who sought entrance to the school's citizen-soldier program (UNITED STATES V. VIRGINIA, 518 U.S. 515, 116 S. Ct. 2264, 135 L. Ed. 2d 735 [1996]).

Observers increasingly recognized Souter as the intellectual leader of the emerging moderate core of the Supreme Court. In a number of important decisions, Souter allied himself with Justices ANTHONY M. KENNEDY and O'Connor to forge an influential coalition that has been joined by members of the Court's ideological extremes. In this regard Souter has played a critical role in building a consensus of judicial philosophy among the Supreme Court justices.

In Planned Parenthood v. Casey, 505 U.S. 833, 112 S. Ct. 2791, 120 L. Ed. 2d 674 (1992), for example, the state of Pennsylvania asked the Supreme Court to overturn ROE V. WADE, 410 U.S. 113, 93 S. Ct. 705, 35 L. Ed. 2d 147 (1973), the decision guaranteeing women the right to terminate their pregnancies under certain circumstances. After oral arguments, five justices—Rehnquist, Scalia, O'Connor, Kennedy, and BYRON R. WHITE—expressed serious reservations about the holding in Roe. Based on these reservations, Rehnquist was prepared to draft a majority opinion that would have gutted virtually every tenet in the 1973 precedent.

Before Rehnquist finished writing the opinion, however, Souter, O'Connor, and Kennedy met outside the presence of the other justices to discuss the case. Following this meeting, the three justices presented a joint opinion that affirmed the central holding of Roe. Neither the state nor federal governments, the joint opinion in Casey stressed, may pass laws that place an "undue burden" on a woman's right to have an abortion. Souter, O'Connor, and Kennedy drew support from the traditionally liberal JOHN PAUL STEVENS and HARRY A. BLACKMUN, who concurred in principle with the joint opinion, and from the traditionally conservative Rehnquist, who concurred in judgment.

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