Vol. 15 No.11 (November 2005), pp.976-978

DAVID HACKETT SOUTER: TRADITIONAL REPUBLICAN ON THE REHNQUIST COURT, by Tinsley E. Yarbrough.  New York: Oxford University Press, 2005.  324pp.  Cloth $29.95/£17.99. ISBN: 0-19-515933-0. 

Reviewed by John R. Vile, Department of Political Science, Middle Tennessee State University. Email: jvile [at] mtsu.edu.

The year 2005 is likely to mark a significant turning point for the U.S. Supreme Court.  Since Tinsley Yarbrough of East Carolina University wrote this biography of David Souter, John Roberts has replaced William Rehnquist as Chief Justice, and George W. Bush has nominated Samuel Alito to replace Sandra Day O’Connor as an associate justice after Harriet Miers withdraw her name from consideration.  Miers’ lack of a paper trail accentuated questions about her constitutional competence and her close ties to the president. The failed Miers nomination highlights the difficulty of confirming candidates whose judicial philosophy is relatively unknown. 

In this context, Yarbrough’s biography of David Hackett Souter is especially timely.  As the quintessential “stealth candidate,” Souter’s positions were so unknown when George H.W. Bush nominated him that, even after 15 years of service, some constitutional observers may still be fuzzy about his views.  Souter remains  best known as one of a troika of justices (the others were Sandra Day O’Connor and Anthony Kennedy) who, citing the importance of stare decisis, voted in  PLANNED PARENTHOOD OF SOUTHEASTERN PENNSYLVANIA v. CASEY (1992) to retain the “central holding” of ROE v. WADE (1973).

As the subtitle of his biography reveals, Yarbrough makes a convincing case that Souter is a “traditional Republican,” or “common-law” justice on a more untraditional and conservative Court.  At one point Yarbrough calls Souter “a judicial conservative, not a political conservative” (p.196).   Yarbrough shows why more outspoken political conservatives have regretted the nomination that has arguably kept them from reversing a number of precedents, most notably on abortion, that they had hoped to change.

When he was eleven, Souter’s family moved from Melrose, Massachusetts, where he was born in 1939, to a modest home in East Weare, New Hampshire.  Souter still enjoys spending his summers there surrounded by stacks of books, in a small community of neighbors who are almost as solicitous of his privacy as he is.  A Harvard graduate and Rhodes Scholar, Souter was especially influenced by a distant relative, “Aunt” Harriet Moulton Bartlett, who was a medical social worker.  Souter returned to Harvard for his law degree.  He worked hard but, perhaps in part because he was a house proctor and freshman advisor, made little impression on most fellow law students.

After a brief stint in private practice, Souter successively worked as an assistant attorney general, a deputy [*977] attorney general, and as the Attorney General of New Hampshire before serving on the state’s superior court, the New Hampshire Supreme Court, and, very briefly, on the U.S. First Circuit Court of Appeals.  Largely through the efforts of Republican Senator Warren Rudman (who rather seems to have enjoyed slipping past a more liberal nominee) and Bush aide, John Sununu, Souter made it to Bush’s short list for the Supreme Court to replace William J. Brennan in 1990.  One of Souter’s primary assets was that his relative obscurity provided a smaller target than the prolix writings of more controversial earlier nominees, most notably Reagan’s Robert Bork.  In retrospect, Souter’s prior willingness as attorney general to defend some of the more controversial actions (for example, lowering the flag to half staff on Good Friday) of conservative Governor Meldrim Thomson may well have obscured some of his own more liberal commitments.

Yarbrough thoroughly and effectively details Souter’s background, his years in the state attorney general’s office, his key decisions as a New Hampshire judge, the hearings over his confirmation, and his tenure on the Court.  For inquiring minds who want to know, although he is a bachelor who gives Washington hostesses little opportunity to play the role of match-maker, Souter seriously dated women during his college years and is not gay.  He dresses meticulously, enjoys hiking but is not especially athletic, is such a serious Episcopalian that, as a youth, he considered becoming a priest, drives run-down cars, is frugal, and has a good, albeit not rollicking, sense of humor.

Yarbrough considers just about every important aspect of Souter’s jurisprudence.  He does a particularly good job describing Souter’s position in BUSH v. GORE (2000) –where he opposed Supreme Court review, acknowledged that existing standards for counting votes were inadequate, but opposed stopping the vote count.  Yarbrough also emphasizes Souter’s adherence to strict separation of church and state jurisprudence in establishment cases and describes Souter’s acceptance of substantive due process rights.  By categorizing Souter as a “constitutional nationalist,” Yarbrough ties his opinions on federalism issues to traditional Republican precedents.  This reviewer senses something deeper.  Souter certainly appears more deferential to liberal than to conservative precedents. 

Yarbrough constantly draws parallels between Souter and John Marshall Harlan II, about whom Yarbrough has also written.  The differences between the Warren and Rehnquist Courts make such comparisons difficult, but despite Harlan’s dissenting opinion in POE v. ULLMAN (1961) recognizing substantive due process, this reviewer thinks Yarbrough has overdrawn the comparison.  Harlan’s vigorous dissents in the reapportionment cases, in the Pentagon Papers Case, and in incorporation cases dealing with the rights of criminal defendants suggest that Harlan was more conservative and more deferential to states’ rights than Souter has been.

The two justices did share a fundamental decency that, although hardly confined to males, biographers traditionally associated with “gentlemanliness.”  Throughout his career Souter has [*978] consistently recused himself even from a number of cases where he could easily have explained any appearance of impropriety.  Souter is a good friend to the children of his close acquaintances and was kind to his mother and to retired Justices William Brennan, who continued to keep an office at the Court after his retirement, and Thurgood Marshall, who had rather inappropriately questioned Souter’s credentials after Bush nominated him.  He is a charmer who does not hold open grudges against justices who use personal invective, but he consistently not only avoids such invective in his own opinions but generally resists concurring in other such decisions, sometimes even to the extent of writing separate opinions.

Unlike some justices, Souter rarely gives outside speeches.  He prefers summering in New Hampshire to giving seminars to earn extra money or influence audiences outside the courts.  He treats his clerks, many of whom have become law professors, with decency and inspires great loyalty among them.  Like Souter, they refused Yarbrough’s requests for interviews. 

As unusual as it would be for a justice in good health to retire, Yarbrough raises the possibility that Souter, who prefers the joys of rural New Hampshire to those of the more urban Washington, D.C., and who can draw full retirement as of 2005, might consider stepping down early.  Sandra Day O’Connor has been one of his closest friends on the Court, as has Ruth Bader Ginsburg.  If Ginsburg were to follow O’Connor into retirement in the near future, she might hasten such a decision on Souter’s part.

Unless Souter releases a treasure trove of personal papers, he or his clerks begin giving interviews and writing personal memoirs, or he serves another fifteen years, Yarbrough’s biography is likely to be the definitive work on Souter for the foreseeable future.  Yarbrough’s knowledge of Supreme Court opinions is extensive, and although he did not have access to Souter or his clerks, he interviewed a number of acquaintances.  Students of the Supreme Court are fortunate to have such a thorough and balanced portrait of an otherwise largely elusive justice.

CASE REFERENCES:

BUSH v. GORE, 531 U.S 98 (2000).

POE v. ULLMAN, 367 U.S. 497 (1961).

PLANNED PARENTHOOD OF SOUTHEASTERN PENNSYLVANIA v. CASEY, 505 U.S. 833 (1992).

ROE v. WADE, 410 U.S. 113 (1973).

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© Copyright 2005 by the author, John R. Vile.