Remembering Justice David Souter: The Supreme Court Could Use More Like Him
May 14, 2025
Many Americans may have missed this week the passing of Justice David Souter, who retired from the Supreme Court in 2009 after a distinguished 20-year career on the nation’s High Bench, but the oversight would be understandable. After all, it’s not every week, or even every century, that a sitting U.S. President publicly muses about suspending the Writ of Mandamus – known as the “Great Writ” because of its standing, as Chief Justice Salmon P. Chase declared in 1868, as “the most important human right in the Constitution,” what he described as “the best and only sufficient defense of personal freedom.” It’s not every century that the president, in defiance of the Emoluments Clause, contemplates accepting from Qatar a luxury plane worth some $400 million that he can use for personal matters after leaving the White House. And, of course, there’s no overlooking the chaos and turbulence of the economy, which drives the citizenry to distraction.
There was much to like and admire about Justice Souter, who was just 69 when he retired from the Court. Justice Harry Blackmun told a judicial conference that Souter, “perhaps, is the only normal person on the Supreme Court.” Souter never sought to make Washington, D.C. his home, nor was he seduced by the trappings of power and the social scene that captured justices and politicians alike. He embraced a simple life and preferred the physical and cultural setting of New Hampshire – the serenity and beauty of its forests and hiking trails and, like fellow New Englander Henry David Thoreau, time for reading and reflection.
Souter lived much of his life in his maternal grandparents’ home outside of Concord and moved in the latter part of his life because the structure of the house was not strong enough to bear the weight of his personal library. When he joined the Court, Souter reluctantly packed up his car in late September before the commencement of each Term, with just a few belongings in tow, and drove to his spartan Washington apartment, already looking forward to returning to New Hampshire after the High Court had finished its business. When he retired, Justice Souter said there was more to life than life on the Court, no matter how much he enjoyed his time on the nation’s highest court.
Souter, by every measure, worked exceptionally hard. He worked in his chambers late into the evening and spent his weekends in his office. Most days, he ate lunch – a cup of yogurt and an apple, including the core – at his desk. He was an intellectual powerhouse who wrote major opinions on issues of religion, First Amendment, privacy, abortion rights, federalism, race, and the structure of democracy. By historical standards, Souter was viewed as a moderate conservative jurist, committed to precedent and the rule of law. Like Justice Oliver Wendell Holmes, whose pragmatism he admired, Souter prized a modest, restrained role for the Court.
Legal scholars praised his dissent in Bush v. Gore (2000), in which the Court, in a 5-4 decision, halted Florida’s recount in the contentious presidential election. He believed the Court acted without authority when it voted to terminate the recount process. As a former state supreme court justice, Souter would have given the Florida Supreme Court more time to supervise the process.
Souter’s most notable opinion was likely his co-authorship in 1992, with Justices Anthony Kennedy and Sandra Day O’Connor, of a ruling that reaffirmed Roe v. Wade’s protection of a woman’s right to terminate a pregnancy, which reflected his strong commitment to precedent. Planned Parenthood v. Casey was the Court’s first opinion that recognized the relationship between reproductive rights and women’s equality.
Souter’s deep-seated concerns about the future of democracy were featured in a rare public interview in 2012, in Concord, before an audience of some 1,300 persons. Adam Liptak of the New York Times, in a May 12 story, recounted Souter’s pointed remarks about the threats to our democracy. The retired Justice warned that pervasive public ignorance about the Constitution and the structure of government could give rise to an authoritarian who would concentrate power in his hands. “That is the way democracy dies,” Souter said. “An ignorant people can never remain a free people. . . . Democracy cannot survive too much ignorance.” In various ways, until his death, Souter extolled the virtues of civic education.
-David Adler