Supreme Court Justice David Hackett Souter "is a very private person to say the least," began Professor Tinsley Yarbrough, author of the recently released biography of Justice Souter, in a discussion organized by the Division of U.S. Studies. Justice Harry Blackmun, who sat on the bench with Souter for four terms of the Court, often tried to get Souter to make public appearances, but Souter, according to Yarbrough, usually declined. Despite the reticence of his subject, and the refusal of Souter and his law clerks to be interviewed, Professor Mark Tushnet and Professor Karen O'Connor agreed that Professor Yarbrough provided insight into Souter's character and jurisprudence.

When Justice William J. Brennan, Jr. announced his retirement from the Supreme Court in 1990, then-Judge Souter had been serving on the First Circuit Court of Appeals for only five months. President G.H.W. Bush chose him in part because he did not have a long trail of legal writings to dissect, and Bush wanted to avoid a repetition of the debacle of the Robert Bork nomination. Supporters of Souter's nomination, including John Sununu, then-White House Chief of Staff and former Governor of New Hampshire, assured conservatives that Souter was "a home run." The expectation of the administration, Yarbrough said, was that Justice Souter would be a justice in the mold of Justice Scalia.

The Bush administration did not look closely enough, according to Yarbrough, who analyzed Souter's record on the New Hampshire Supreme and Superior Courts as demonstrating that he was a "traditional Republican" with a family background in issues such as abolition. Souter was equally unlikely to tip the Court toward the Scalia approach to jurisprudence, Yarbrough argued, because of his commitment to the common law and its emphasis on handing down decisions that comport with earlier precedents. So, for example, while a deeply religious man, Souter has become the "most separatist of the justices" (meaning the one most committed to separation of church and state) because of the decisions in that area handed down by the Warren Court. Similarly, Yarbrough argued, had abortion rights been a new issue, Souter might have voted against the right. He followed the precedent of Roe v. Wade and became one of the co-authors of the Court's opinion in Planned Parenthood v. Casey (1992), however, upholding the right in part because it had been a relied-upon precedent for two decades.

Given Yarbrough's discussion of Souter's track record, Mark Tushnet was prompted to ask, "What was Sununu thinking?" On the one hand, Tushnet conceded, Souter's decisions on the New Hampshire courts could be construed as coming from a "conservative" judge because they were conservative in outcome. On the other hand, had conservative activists paid attention during Souter's confirmation hearings, they would have foreseen that he would use an analytical approach toward decision-making – looking at each argument carefully and drawing from earlier decisions before making his own assessment. Souter was even more likely to utilize this approach on the Supreme Court as the issues would be unlike the ones he faced as a judge on the state courts. "The label 'conservative judge' turns out to be more capacious than the conservative activists think it is," Tushnet observed, adding that "conservative" can mean adherence to a cautious, incremental common law approach.

One can make a comparison between Justice Souter and another stealth Supreme Court candidate, Harriet Miers, Professor Karen O'Connor noted. Miers, however, has even less of a written record in the field of constitutional law than did Souter. During his confirmation hearing, Souter's expressed admiration for the second Justice John Marshall Harlan, who was the quintessential common law judge without a political agenda, signaled Souter's likely approach to judging. Commenting that Miers has no judicial record or portfolio of law review articles, O'Connor said it is impossible to predict whether she will follow Souter's model of interpreting the law without political considerations. If Miers is confirmed, it will be interesting to hear what scholars of the Court will argue "we should have known" some decades in the future.

Drafted by Acacia Reed

Philippa Strum, Director of the Division of U.S. Studies (202) 691-4147