David Remnick: Welcome to the New Yorker Radio Hour, I’m David Remnick. The justices of the Supreme Court who overturned Roe versus Wade all said a very similar thing when asked about Roe during their confirmation hearings.  

Speaker 1: Can you tell me whether Roe was decided correctly? 

Speaker 2: Senator, again, I would tell you that Roe v. Wade, decided in 1973, is a precedent of the U.S. Supreme Court.

Speaker 3: To your point, your broader point, Roe v. Wade is an important precedent of the Supreme Court. It has been reaffirmed many times.  

Speaker 4: Senator, I completely understand why you are asking the question, but again, I can’t pre-commit or say yes, I’m going in with some agenda, because I’m not.

David Remnick: Basically: It’s a precedent; and I can’t speak about a hypothetical case that hasn’t come before me yet. Remember, these are justices who would go on to sign an opinion saying that Roe was “egregiously wrong and on a collision course with the Constitution from the day it was decided.”

Speaker 3: When you are in this seat, I am not just sitting here for myself. I am sitting here as a representative of the judiciary and the obligation to preserve the independence of the judiciary, which I know you care deeply about. And so one of the things I have done is studied very carefully what nominees have done in the past, what I have referred to as ‘‘nominee precedent.’’ 

David Remnick: What Brett Kavanaugh called “nominee precedent” boils down to this: I’ll just keep my trap shut until I get the job, thank you. So if that’s the precedent, who set it?  How can nominees just hedge their way through confirmation – refusing to answer questions that touch every American’s life?  One answer to that is: David Souter. David Souter, of New Hampshire – a modest and unassuming justice who left an outsize mark on the court.

Today on the New Yorker Radio Hour, we’re bringing you a special episode produced by “More Perfect” – WNYC’s series about the Supreme Court.  Here’s Julia Longoria, host of More Perfect, speaking with journalist Ashley Lopez.

Ashley Lopez: So, my name is Ashley Lopez, and I'm a political correspondent for NPR.

Julia Longoria: But you, you are here today… 

Ashley Lopez: Yeah. [laughs]

Julia Longoria: Because of your, do we wanna call it an obsession?

Ashley Lopez: You know what, uh, I guess obsession is maybe a little bit too much. 

Julia Longoria: Okay. I’m sorry, I’m sorry.

Ashley Lopez: Um, but it's not far. It's not far. I've just been very intrigued for many years by David Souter. Like, who he was on the Court is what sort of set off a chain of events that led us to the Court we have today. Like I don't think you could talk about the Court and what it is without talking about David Souter. 

[Archive, Male Newscaster]: Justice David Souter has informed the White House he will retire at the end of a Supreme Court term in June.

Justice David Souter retired in 2009, when Barack Obama was president.

Ashley Lopez: First, I thought he was interesting because he was appointed by a Republican and was ceding his seat to a Democratic president. Like that's a kind of a weird thing. Either you die in the seat or you hand it over to the party that puts you into the seat.

[Archive, Male Newscaster]: Souter is perhaps best known as one of the most surprising justices to hold the office.

Ashley Lopez: But the thing that stuck out to me was just like how everyone talked about David Souter.

[Archive, Female Newscaster]: The reclusive justice stays hidden.

[Archive, Female Newscaster]: Notoriously camera shy. 

[Archive, Rachel Maddow]: David Souter speaks in public rarely now.

[Archive, Male Newscaster]: The shy, reclusive bachelor from the other side of the country in New Hampshire. 

Julia Longoria: Souter is unusual for a Supreme Court justice, and not just because he went rogue and left his seat to a Democrat. He was one the most mysterious figures to ever sit on the Supreme Court. He hardly ever gave interviews, and he was rarely seen in public which kinda turned this skinny bookish judge into the Beyonce of the Supreme Court. Journalists like Ashley have scoured the internet for clues of who this elusive justice might be.

 

Ashley Lopez: One of my favorite details is like that he would eat yogurt and an apple to its core every day. Like he would eat the core of an apple, which I'm just like, I, that's behavior I have never witnessed before.

Julia Longoria: Definitely seems like a nerd.

Ashley Lopez: Not a man about town. He liked to be with his books in like a kind of modest house for being a Supreme Court justice. Apparently he had to move out eventually, and he told his neighbors because it couldn't support the weight of his books. 

[laughs]

Julia Longoria: Also kind of a Luddite.

Ashley Lopez: The only technology he used was a telephone, and he wrote only with fountain pens, and he would only write in longhand. 

Julia Longoria: And maybe a recluse?

Ashley Lopez: One of my favorite stories actually is that he like actually had a good date. He was like set up by someone and at the end of the date turns to this woman and is like, this was fun. Let's do this again in a year.  

[laughs]

[music]

Peter Rubin: People on all sides wondered, you know, who is David Souter?

Julia Longoria: And in the moments he did reveal who he was, he made some very powerful people very unhappy. 

John Sununu: I really feel betrayed by David Souter. 

[Archive, Male Newscaster]: The slogan, the mantra within the Republican Party was No More Souters

[Archive, Female Newscaster]: No more Souters was the rallying cry.

Julia Longoria: The effect was that when David Souter finally left the building, the Supreme Court never looked the same. 

 

[ring ring]

Tinsley Yarbrough: Hello?

Julia Longoria: Hi, is this Tinsley?

Tinsley Yarbrough: This is he.

Julia Longoria: Hi. 

Julia Longoria: This is Tinsley E. Yarbrough, former political science professor at East Carolina University.

Tinsley Yarbrough: I'm now long retired.

Julia Longoria: We brought him out of retirement because back in the day, Tinsley was a prolific Supreme Court biographer.

Tinsley Yarbrough: Biographies of the second Harlan, Hugo Black, Justice Harry Blackmun. 

Julia Longoria: Also author of the only biography we could find on Justice David Souter. He says he began writing that book the way he always begins. 

Tinsley Yarbrough: I began contacting his former clerks. 

Julia Longoria: Law clerks know a lot about a justice. They work closely together researching cases and writing decisions.

Tinsley Yarbrough: After a couple of weeks I started getting these uh, emails saying that on further reflection, we think it would be best not to, not to talk. 

[laughs]

Julia Longoria: This kind of response was a first for Tinsley.

Tinsley Yarbrough: And I then I found out that, uh, Justice Souter, had asked them not to uh, interview. He did not want a biography to be written about him. And haha wanted them not to cooperate. And the clerks, of course did not. 

Julia Longoria: We sent many emails to clerks, had many background calls, and one clerk did agree to talk to us. 

Julia Longoria: Um, you're kind of known as the Justice Souter whisperer. [chuckles] Do you identify as that?

Heather Gerken: No. Uh, but I, I do identify as uh, one of his early law clerks.

Julia Longoria: Heather Gerken, Dean of Yale Law School, was one of Souter’s most trusted clerks. She showed producer Gabrielle Berbey a photo from her time working in the Supreme Court building.  

Heather Gerken: We, we were very, very close group of clerks. And so, 

Gabrielle Berbey: Wait, what do you guys do? Can you explain what is happening with this photo?

Heather Gerken: So Stewart, Stewart said, um, one of my co-clerks said, oh, we should do a photo with a pyramid.

Julia Longoria: A pyramid, like a cheerleading pyramid, where they climbed up on top of each other.

Heather Gerken: And why we thought this was a good idea in the middle of the day, in one of the courtyards inside the Court, one most dignified institutions around just shows a complete lack of judgment on our part. And then we looked up, and there was the justice. And each one of us was ready at that moment to hand in our resignation because it was ridiculous. Uh, and instead he very sweetly said what this pyramid needs is a top.

Gabrielle Berbey: That's, yeah. So he's at the top, and he just has this big wide grin.

[laughs]

Julia Longoria: Justice David Souter did not respond to our repeated requests for an interview, shocker I know. Sitting across from Heather was the closest we came to meeting him, and after Heather spoke to us, other clerks followed.

Kermit Roosevelt III: When I first laid eyes on him, I wouldn't say that he made a really strong impression on me.

Julia Longoria: Former Souter clerk Kermit Roosevelt III says Souter was very different from other justices he interviewed with who did make an impression.

Kermit Roosevelt III: I was like these Supreme Court justices are strange people.

Julia Longoria: Rehnquist, for instance, was kind of a performer.

 

Kermit Roosevelt III: Rehnquist started reciting this poem by Arthur Henry Hallam. And I had memorized it as part of my preparation, so I sort of chimed in appreciatively, 

Julia Longoria: So like he started reciting a poem and then you were like joining in like a, like you,

Kermit Roosevelt III: Yes, I joined in, which was a mistake because I think it made me look weird and over prepared. And definitely all of them came across with sort of a stronger personality.

Julia Longoria: Souter was more understated, say the clerks.

Heather Gerken: He always wears a three piece suit. 

Julia Longoria: He was polite. 

Heather Gerken: Deeply ethical, deeply kind. 

Julia Longoria: But firm. Unlike many other Supreme Court justices, Justice Souter wrote most of the words of his own opinions himself.

Heather Gerken: The Justice would edit it so heavily and so fiercely that sometimes we would look back and say, well, he left an and, and a semicolon in the, in the draft. But that's a real judge though, right?

Julia Longoria: I asked the clerks about some of the rumors I'd heard. 

Peter Rubin: They had to reinforce the house to hold all his books.

Julia Longoria: This is Judge Peter Rubin, another Souter clerk.

Julia Longoria: Is that true?

Peter Rubin: That's a true story. Yeah, that's true. 

Julia Longoria: The thing about him eating an apple to its core?

Kermit Roosevelt III: That is true. And we as clerks actually tried to get him to stop doing that.

Julia Longoria: Really?

Kermit Roosevelt III: We said, justice, justice, don't eat the apple cores. They're bad for you.

Julia Longoria: And he was a bit of a technophobe.

Kermit Roosevelt III: I walked into his chambers, and the room was basically completely dark. And Justice Souter was standing by the window reading in the light that was coming through the window.

Julia Longoria: Like from the moon or something?

Kermit Roosevelt III: Well, yeah, because he didn't want to use the electricity until it was absolutely necessary.

Julia Longoria: But the idea that he's a recluse? That’s not true.

Kermit Roosevelt III: It's just that he's not interested in putting on a public performance. 

Julia Longoria: Growing up in New Hampshire, Souter was active in his church community. He was pretty popular in grade school and high school, says Biographer Tinsley Yarbrough.

Tinsley Yarbrough: And he always said that he was going to be on the Supreme Court, and some of his friends would joke and refer to him as Mr. Justice Souter. 

[chuckles]

Julia Longoria: In his high school yearbook, David Souter was voted most likely to succeed and most sophisticated. He went to Harvard and Oxford, and served as New Hampshire’s Attorney General and state Supreme Court judge. He just wasn’t outspoken in the press. 

Tinsley Yarbrough: It was just part of his, uh, penchant for privacy. I might add to that, he uh, was appointed in part because he was such a low profile person.

Julia Longoria: Outstanding credentials, but a low key personality.

Tinsley Yarbrough: His Concord, New Hampshire friends, sold him as the perfect nominee to George H.W. Bush's chief of staff, John Sununu, 

 John Sununu: Well this for me is a sensitive subject. 

 

Julia Longoria: I sat down to talk to John Sununu, former governor of New Hampshire and more importantly for our purposes.

John Sununu: Former chief of staff to President George Herbert Walker Bush.

Julia Longoria: He talked to me because he wanted to set the record straight about the Souter nomination. It all began in 1990, George H.W. Bush was about to have his first pick to the first Supreme Court. And the Republican party had its sights set on abortion, and overturning Roe v. Wade. 

Kermit Roosevelt III: As we've seen, the simplest and most direct way to do it is change the judges. So, Republican party appointments were certainly guided by a desire to find people who would vote to overturn Roe. 

Julia Longoria: But abortion wasn’t the only thing that might’ve been on George H.W. Bush’s mind.

John Sununu: The president wanted to nominate somebody that was a good conservative, but, uh, would minimize the chance of being Borked again by the Democrats.

Julia Longoria: Borked, as in Robert Bork. Looming over Bush’s nomination of David Souter, was a different nomination that had happened 3 years earlier. 

[Archive, Ronald Reagan]: And I today announce my intention to nominate United States Court of Appeals Judge Robert H. Bork to be an Associate Justice of the Supreme Court.

Julia Longoria: President Ronald Reagan nominated Bork to the Supreme Court in 1987, resulting in some pretty infamous confirmation hearings.

[Archive, Female Newscaster]: Up next, we continue our coverage of today's hearing. Committee Chairman is Joseph Biden of Delaware.

[Archive, Joe Biden]: Judge, welcome back. Committee will come to order.

Julia Longoria: Before Bork even opened his mouth to speak, then Senator Joe Biden told the committee he was concerned.

[Archive, Joe Biden]: You are no ordinary nominee judge. You've been recognized as the leading, a leading, perhaps the leading proponent of a provocative constitutional philosophy. 

 

Julia Longoria: A philosophy called originalism. Bork explained his interpretation of it in his opening statement.

[Archive, Robert Bork]: How should a judge go about finding the law? The only legitimate way, in my opinion, is by attempting to discern what those who made the law intended.

Julia Longoria: Democrats thought his theory would lead to dangerous conclusions on the ground.

[Archive, Edward Kennedy]: Robert Bork's America is a land in which Blacks would sit at segregated lunch counters, women would be forced into back alley abortions. 

Julia Longoria: And one of their biggest fears was that he’d overturn Roe versus Wade. When Bork was asked about the right to an abortion, he was honest.

[Archive, Robert Bork]: I don't mean Senator to try to offer anybody some hope that I would find that constitutional right. 

Julia Longoria: He didn’t say much to assuage their concerns.

John Sununu: I think Judge Bork at that time made the mistake of thinking that his confirmation process was an opportunity to discuss the philosophical pluses and minuses of a lot of critical issues.

Julia Longoria: John Sununu again.

John Sununu: And, uh, the Democrats jumped on that, uh, to make him sound like a radical through a process of attack that nowadays is, uh, recognized as being Borked.

Peter Rubin: I've never understood when people say he was Borked, like something unfair happened to him.

Julia Longoria: Former Souter clerk, Judge Rubin.

Peter Rubin: I think he accurately represented his views at the hearings, and a majority of the Senate decided they didn't want him to be on the Supreme Court.

[music]

 

Julia Longoria: All of the Democrats and six Republicans rejected Bork's nomination. It became a bit of a cautionary tale about what happens when a candidate to the Supreme Court is transparent about their views.

John Sununu: When I got to be chief of staff, I was certainly aware that this was something that President Bush had to keep in mind as he made his nominations.

[Archive, George H.W. Bush]: I look forward to presenting Judge Souter’s nomination to the Senate as quickly as possible. 

David Remnick: You’re listening to the New Yorker Radio Hour.  More to come.   

[music]

David Remnick: This is the New Yorker Radio Hour, I’m David Remnick.  

Our program today is about a  Supreme Court Justice who quietly changed the nomination process for the justices who came after him, and helped give us the Supreme Court we have today.  The story comes from WNYC’s More Perfect. 

Before the break we heard about the hearings for Robert Bork, in 1987.  Bork’s nomination failed after he answered Democrats’ questions on abortion and other topics a little too directly.  That cast a shadow over the next nomination, in 1990 – when the liberal judge William Brennan retired with health issues. 

[Archive, George H.W. Bush]: I look forward to presenting Judge Souter’s nomination to the Senate as quickly as possible. 

Julia Longoria: In the summer of 1990, President George H.W. Bush announced his nomination in the White House.

[Archive, George H.W. Bush]: And I look forward as well to a fair and expeditious confirmation process. Helen?

[Archive, Female Reporter]: Did you ask, uh, Judge Souter his views on abortion? Uh, do you know what his views are and affirmative action and all of these things have become so controversial of the major issues of the day? 

[Archive, George HW Bush]: No, and I had o,one meeting with Judge Souter. I was very impressed, but in my view, it would've been inappropriate to ask him his views on specific issues.

 

[Archive, Male Reporter]: Sir, a follow up. You're not certain in your own mind how Justice Souter will vote. 

Julia Longoria: Reporters keep pressing him about this over and over. 

[Archive, George HW Bush]: You all can keep trying all day long to get me to comment on abortion in relation to this nomination. And please keep, stop trying because I'm not gonna respond in that vein.

Julia Longoria: President Bush said he didn’t ask David Souter about abortion, but his chief of staff Sununu did. 

John Sununu: I said, David, uh, how would you act on, on Roe v. Wade? And in his answer, he told me he thinks abortion is an abomination. And then he said, but I don't want to go any further on discussing an issue that may come before the Court. Souter tried to convey to us that he was a conservative on all issues including the life issue.

Julia Longoria: But Sununu says he remained skeptical.

John Sununu: I thought he'd be a decent judge, a good judge, but, but certainly not necessarily my first pick.  

Julia Longoria: What ultimately swayed the president, do you think, toward David Souter?

John Sununu: I don't know. I never pressed the President to explain his decision to me.

[chuckles]

Peter Rubin: People certainly thought that Justice Souter had been picked deliberately because he was a movement conservative who just didn't have a published track record.

Julia Longoria: Judge Rubin says unlike Robert Bork, Souter was a mystery from the start. 

Peter Rubin: He hadn't had a decision about abortion or really any major constitutional issue that I can think of. I think he'd only sat one day, heard oral argument one day on the First Circuit, and not issued any written opinions yet when he was nominated. So, doubtless people on all sides wondered, you know, who is David Souter?

[music]

[Archive, Joe Biden]: Welcome back, uh, to the hearing Judge Souter. As indicated before we left, we would welcome any opening statement, uh, you have to make, for as short or as long as you would wish to make it and uh, and then we will begin with questioning.

[Archive, David Souter]: Thank you, Mr. Chairman. Um, I probably should begin by asking if you can hear me as well as I can hear you?

[Archive, Joe Biden]: Yes, we can judge. 

[Archive, David Souter]: Okay. Mr. Chairman…

Julia Longoria: Unlike Bork, Souter did not begin with a high-minded legal philosophy. He began by reflecting on all the press coverage that swirled around him. 

[Archive, David Souter]: Uh, and despite the reams of paper and I suppose the forests that have fallen to produce that paper.

Julia Longoria: And with a shoutout to the trees that had fallen to make those newspapers possible. 

[Archive, David Souter]: Everybody knows who’s lived in a small town there is a…

Julia Longoria: He also gave a shoutout to the human beings in his life. First, the ones in his hometown of Weare, New Hampshire.

[Archive, David Souter]: Uh, there is a closeness of people in a small town, which is unattainable anywhere else.

Julia Longoria: And the human beings, he represented as a lawyer.

[Archive, David Souter]: Uh, I remember very well a woman whose personal life had become such a shambles that she had lost the custody of her children and she was trying to get them back.

Julia Longoria: And then from those human beings, he zoomed out.

[Archive, David Souter]: The first lesson, uh, simple as it is…

Julia Longoria: To the lessons he would take with him to the Supreme Court.

[Archive, David Souter]:  Is that whatever court we are in, whatever we are doing, whether we are on a trial court or an appellate court, at the end of our task, some human being is going to be affected. Some human life is going to be changed in some way by what we do.

Julia Longoria: This idea, that he wanted to remain close to the humans affected by the law, was something we kept hearing from his clerks.  

Heather Gerken: One of the most beautiful things that I think he ever wrote was about the myth of Antaeus. 

Julia Longoria: Heather Gerken again. 

Heather Gerken: Antaeus was one of these Greek monsters who had enormous strength, but only if he was touching the ground. And Hercules famously defeated Antaeus only by picking him up and holding him so far above the ground that Antaeus of his strength. And for Justice Souter that was a touchstone for how judging should work, that you needed to keep your feet on the ground, you needed to be connected to facts and reality in order to articulate those grand generalities of the law.  So that, that is very much the kind of judge he was.  

[Archive, David Souter]:  If indeed we are going to affect the lives of other people, we had better use every power of our minds and our hearts and our beings to get those rulings right. [pause] Thank you, Mr. Chairman.

[Archive, Joe Biden]: Thank you very much, judge, uh, for a, uh, a statement that gives us all more insight into you. Maybe a little glimpse into your heart, I think. 

Julia Longoria: Chair of the committee Senator Biden seemed charmed. And then Biden dove into the question of abortion. But Souter seemed ready for this. 

[Archive, David Souter]: The one case which has been on everyone's mind and, and everyone's lips, uh, since the moment of my nomination, uh, Roe v. Wade upon which, uh, the, uh, uh, the, the wisdom or the appropriate future of which it would be inappropriate for me to comment.

Julia Longoria: Souter would not say how he’d rule.

[Archive, David Souter]: Uh, and the only thing I can say as, as you know, is that Roe v. Wade is discussing a, a constitutional issue. 

Julia Longoria: Anytime Roe came up.

[Archive, David Souter]: There really isn't anything I can say about reconciling it.

Julia Longoria: He just wouldn’t answer.

[Archive, David Souter]: If I were to be confirmed is just a subject that I cannot discuss without giving misleading suggestions.

[Archive, Male Senator]: We need to develop an abbreviated answer, so that each time this, this situation arises, you can just say, uh uh, whatever it is you choose to say in a few words. So we don't have to go through the long explanation. I understand where you're coming from...

Julia Longoria: Many anti-abortion Republicans thought Souter was skillfully avoiding saying how he really felt, but when the time came, Souter would know what to do. 

Peter Rubin: And John Sununu said, famously, this nomination is a home run.

John Sununu: I'd respected the President's decision, and I wholeheartedly supported David Souter in, in all my public comments. On the basis of what he told me, I believed he was going to be a home run.

Peter Rubin: And that excited the conservative base, I think, and worried liberals.

Kermit Roosevelt III: There were these posters that abortion rights groups had come up with that said, stop Souter or Women will die. 

Julia Longoria: Despite fears from abortion rights advocates, Justice David Souter was confirmed by the Senate overwhelmingly - by a vote of 90-9. Souter was sworn into the Supreme Court on October 8th, 1990. And President Bush and all the other Republicans watched as their stealth candidate began to make decisions on the Supreme Court and reveal who he was.

[music]

Tinsley Yarbrough: Well, I, I think any first year for a justice is pretty difficult.

Julia Longoria: Souter's biographer Tinsley Yarbrough. On the surface, not much happened that first year. The decisions he wrote were pretty uncontroversial to the Republican Party.

Tinsley Yarbrough: I remember for example, the Court upheld a ban on nude dancing.

[Archive, Male Newscaster]: Up next, on Supreme Court Review, the Court is being asked to decide if nude dancing is conduct or expression protected by the First Amendment.

Tinsley Yarbrough: Souter wrote a concurring opinion in which he joined the ban on nude dancing.

Julia Longoria: And so Republicans would've said to that like, yes, this man's a home run kind of thing? Like that was in line with, with what? [laughs]

Tinsley Yarbrough: Right,

Julia Longoria: Yeah.

Tinsley Yarbrough: That, that was the case.

Julia Longoria: No nude dancing. [laughs]

Julia Longoria: On the outside, it seemed this was a home run. On the inside, Souter seemed to be going through something. 

Julia Longoria: The summer after his first year, Souter wrote a letter to Justice Blackmun, and said quote, “I have wanted as much as possible to be alone to come to terms in my own heart with what has been happening to me.” What do you think he meant by that?

Tinsley Yarbrough: Well, I think it, it was all pretty overwhelming to him. The nomination itself, and the press attention that he got was just over the top.

[Archive, Male Newscaster]: Earlier today the Supreme Court of the United States heard arguments in the case of Planned Parenthood versus Casey. An abortion case from Pennsylvania.

Julia Longoria: Planned Parenthood versus Casey.

[Archive, Male]: Governor, if you'd step up to the microphones please.

Julia Longoria: Bob Casey was the governor of Pennsylvania.

[Archive, Bob Casey]: And uh, unfortunately in the, in the Roe case, in my judgment, the, uh, Supreme Court didn't go far enough in asserting, uh, and protecting the, the integrity of the, uh, unborn child.

Julia Longoria: A Pennsylvania statute sought to protect fetal life by adding requirements for people who wanted to get an abortion. Patients needed to inform their spouse, to give informed consent, and wait 24 hours before getting the procedure. Planned Parenthood sued the governor saying the law violated Roe v. Wade.

[Archive, Female]:  It is our view that the question before the Court is whether or not Roe versus Wade remains the law of the land. And whether or not this Court…

Julia Longoria: Peter Rubin was a Souter clerk at that time.

Peter Rubin: By the time of Casey in 1992, it was thought that there were at least five votes on the Supreme Court to overrule Roe.

Julia Longoria: Souter was thought to be that fifth vote, Sununu's home run to overturn Roe.

John Sununu: He had been a, a fairly conservative, justice on the New Hampshire Supreme Court.

Peter Rubin:  He was a very typical moderate conservative judge and, uh, what had once been a quite normal kind of Republican 

Julia Longoria: Souter thinks judges should be hesitant to make any sudden moves.

Kermit Roosevelt III: Souter is not an activist, And he thinks that courts are very important because they're a moderating force on society, so that courts can try to tamp down partisan conflict.

Julia Longoria: His clerk Kermit Roosevelt says this idea sort of ran in Souter’s family. 

Kermit Roosevelt III: Souter had a New England ancestor who was a town magistrate or some kind of judge, and as the Salem witch trials were going on, the hysteria was sort of spreading from town to town. And someone came to him and said, you know, this girl is a witch, just like in Salem, you know, and we're gonna put her on trial. And his ancestor just looked at the man and said, there will be none of that here. And refused to let that hysteria take hold of the town and refuse to let that kind of persecution start. 

Julia Longoria: Fascinating.

Kermit Roosevelt III: And that, I think, is sort of what Justice Souter thought courts were supposed to do.

Julia Longoria: Justice Souter valued stability.

Heather Gerken: It's a very modest approach to judging. 

Julia Longoria: Former clerk, Heather Gerken again. 

Heather Gerken: The justice is a common law judge. Common law is the law developed over centuries by judges looking at similar kinds of questions in building out the case law over time. So it's not a top down, I am the great philosopher and I will command from on high, and thus and so shall be the principles. And I think you see that most clearly in the opinions where he is focused on the question of stare decisis.

Julia Longoria: Stare decisis. It's the fancy Latin phrase for the idea that courts should try to uphold the decisions that came before them, follow precedent.

Kermit Roosevelt III: Justice Souter takes precedent very seriously in part because he values stability. But I think it also shows the extent to which he thinks that courts are important and individual judges aren't. He doesn't think that he's better or smarter than the judges who went before him. 

Julia Longoria: We know that precedent was on Souter’s mind when he sat down to write the Casey opinion. 

Tinsley Yarbrough: In the exchanges of the justices, memos that were going back and forth. It, it's very clear that he, whatever his personal view about Roe v. Wade and the abortion right, it was very clear to him that the court had no business reversing the Roe decision. And he wanted to find some way of getting the court to avoid a reversal.

[Archive, Male Newscaster]: Planned Parenthood of Southeast Pennsylvania versus Casey and a companion case will be announced by Justice's O'Connor, Kennedy, and Souter.

Julia Longoria: The opinion was announced and written in a pretty unusual way. There were three bylines, all people who were originally put there by Republican presidents, fully co-authored the opinion. 

Kermit Roosevelt III: Lots of people thought that Roe was gonna be overturned, so it was a moment of high drama.

Julia Longoria: Justice Sandra Day O’Connor went first.

[Archive, Sandra Day O’Connor]: Justice Kennedy, Justice Souter, and I have filed a joint opinion, and we conclude that the central holding of Roe should be reaffirmed. Some of us as individuals find abortion offensive to our most basic principles of morality, but that can't control our decision. Our obligation is to define the liberty of all, not to mandate our own moral code.

Kermit Roosevelt III: Surprising everyone, this plurality opinion preserved a fundamental right to abortion.

[Archive, Sandra Day O’Connor]: We reaffirm the constitutionally protected liberty of the woman to decide to have an abortion before the fetus attains viability, and to obtain it without undue interference from the state.

Kermit Roosevelt III: Justice Souter wrote the part of the opinion, talking about respect for precedent.

Julia Longoria: Here’s Justice Souter. 

[Archive, David Souter]: A foundation for our decision today is the conclusion that if there was error in Roe, its significance is outweighed by the importance of following prior precedent. Stare decisis is necessary not only to accomplish the mundane tasks of any legal system, but to realize our hope for a stable society aspiring to the rule of law. Like the character of an individual, the legitimacy of the Court must be earned over time. If the Court's legitimacy should be undermined, the country would also, in its very ability to see itself through its constitutional ideals.

Julia Longoria: It’s worth noting that the Justices did open the door to significant limits on the right to an abortion. They allowed governments to restrict the right with things like a 24 hour waiting period. But at the time, the headline across America was: Roe holds. The nation was watching Justice Souter. After the questions raised by his confirmation hearings, the public finally had an answer.

Peter Rubin: His co-authorship of Casey told everyone, you know, this is who he is.

Julia Longoria: This was not good news for Bush chief of staff, John Sununu.

Julia Longoria: Do you remember what people were saying to you when the Casey decision came down?

John Sununu: Uh, yeah, you blew it. [chuckles] I thought David was going to be a good judge on the Supreme Court, and, uh, tried to support the President's decision wholeheartedly in all of my assurances to the conservative groups around the country. I was so consistent and so aggressive in that direction is one of the reasons I really feel betrayed. I think it's something he planned all along. To be deceptive during this process, to very clearly obfuscate the real positions he had on the life issue, the Roe v. Wade issue.

Julia Longoria: What I'm hearing you say is that you think he was being deceptive out of ambition for wanting to be out of, on the Supreme Court? 

John Sununu: Exactly right.

Julia Longoria: Souter’s clerk Rubin says there was nothing deceitful about the way he ruled. 

Peter Rubin: I think if you go back now and read Justice Souter’s testimony at his confirmation hearing, you’ll find that every word of it is truthful. 

Julia Longoria: Casey wasn’t the only decision that term where Souter disappointed conservatives. That same year, he joined the majority in ruling that prayer in public schools violated the separation of church and state. But the abortion decision seemed to be the biggest disappointment. 

Julia Longoria: Coming away from Casey, how do you think the public's image of, of Justice Souter changed?

Kermit Roosevelt III: Well, that's what gave rise to the “No More Souters” meme.

Julia Longoria: Hmm.

Kermit Roosevelt III: I don't think we had memes then. 

Julia Longoria: Yeah. [chuckles]

Kermit Roosevelt III: But I think they did have posters that said, No More Souters. 

[Archive, Female Newscaster]: No more Souters.

[Archive, Male Newscaster]: No more Souters.

[Archive, Male Newscaster]: No more Souters. Justice David Souter, someone who's appointed by a Republican president, ended up being a vote on the liberal side of the Supreme Court.

[Archive, Male Newscaster]: The slogan, the mantra within the Republican party was no more Souters.

Kermit Roosevelt III: So, you know, first we had our stop Souter or women will die posters, and then we had our No More Souters posters because the Republicans realized they hadn't gotten what they wanted. No More Souters means we are gonna know how this person's gonna vote. We're not gonna get disappointed or surprised again.

David Remnick: This is the New Yorker Radio Hour. Our story continues in just a moment.  

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David Remnick: This is the New Yorker Radio Hour. I’m David Remnick.

Our program today is a special episode produced by More Perfect, WNYC’s Supreme Court show.  And it’s about the lasting influence on the Court of retired justice David Souter. His influence wasn’t an imposing judicial philosophy or a momentous decision – that’s not Souter’s style.  But he set the pattern for how justices get to the bench in a closely divided Senate.  

Souter was thought to be a staunch conservative.  But he consistently deflected questions about his views before, and even after his appointment to the Supreme Court. And then he massively disappointed Republicans by upholding Roe versus Wade, in 1992’s Casey decision. Here’s the final chapter of our story.

 

Julia Longoria: The power of the No More Souters rallying cry was on display in 2005 when Sandra Day O’Connor announced her retirement. 

[Archive, George W. Bush]:  This morning, I'm proud to announce that I'm nominating Harriet Ellen Miers.

Julia Longoria: President George W. Bush nominated Harriet Miers, a lawyer friend of the Bush family. And immediately, 

[Archive, Male Newscaster]: No, no, no. 

Julia Longoria: Republicans raised a red flag.

[Archive, Male Newscaster]: She was a David Souter. 

Julia Longoria: No More Souters.

[Archive, Male Newscaster]: An unknown, unpredictable, stealth candidate.

Julia Longoria: While she seemed conservative, Miers’ views on key conservative issues like abortion weren't totally clear.

[Archive, Male Newscaster]: Harriet Miers would be another David Souter, kind of an indistinct, even liberal justice.

Julia Longoria: A reporter called her "Souter in a skirt." Amidst all the pressure, two weeks before her confirmation hearing, Miers withdrew her nomination. And in her place, President Bush nominated the antithesis to Justice Souter, the reliable, staunch conservative judge, Samuel Alito.

[Archive, Male Senator]: Good afternoon, the Senate Judiciary Committee will now proceed to the confirmation hearings of Judge Samuel Alito Jr. for the Supreme Court of the United States.

[Archive, Samuel Alito]: Thank you very much Mr. Chairman. I am deeply honored to appear before you…

Julia Longoria: And at the confirmation hearing, you might have assumed Alito would have sounded like Bork, explaining his views on abortion. But Alito took a page from Souter’s book. 

[Archive, Samuel Alito]: If the issue were to come before me, if I am fortunate enough to be confirmed, the first question would be the issue of stare decisis.

Julia Longoria: He hedged, and talked about stare decisis. And in the years since then, a strange thing has happened. When it comes to talking about abortion, Justice Neil Gorsuch… 

[Archive, Neil Gorsuch]: Precedent is a key part of that because…

Julia Longoria: Justice Brett Kavanaugh. 

[Archive, Brett Kavanaugh]: As a judge, it is an important precedent of the Supreme Court. 

Julia Longoria: They also took a page from Souter’s book in their confirmation hearings.

Kermit Roosevelt III: One of the really funny things about Souter, I think, is that his confirmation hearings became kind of a model for what judges say because he sounded so moderate and reasonable and modest. 

Julia Longoria: Here’s Souter

[Archive, David Souter]: I have not made up my mind.

Julia Longoria: And here’s Clarence Thomas, just a year later.

[Archive, Clarence Thomas]: I have not made Senator um, a decision one way or the other.

Julia Longoria: And here’s Amy Coney Barrett. 

[Archive, Amy Coney Barrett]: Again, I can’t pre-commit or say yes, I'm going in with some agenda because I'm not, I don't have any agenda. I have no agenda to try to overrule Casey. 

Julia Longoria: All of them went on to overturn Roe and Casey.

Kermit Roosevelt III: Judges after Souters say much the same thing, but he really meant it. And I think that many of the people who came after him didn't.

John Sununu: I think the Souter disappointment and what happened before him with Bork was the red flag, if you will, to conservatives.

Julia Longoria: This is John Sununu again.

John Sununu: The beginning of a message that, uh, Supreme Court seats are important. The Democrats may have recognized before conservatives how important they were, but conservatives now understand they are important and they're involved much more aggressively in the process and devoting more time and more assets to preparing well and to dealing with the nominations when they come to the Senate for confirmation. And frankly, I think it was a major impetus among other things for the efforts of groups like the Federalist Society that put together a list of judges for Trump and so on. 

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Julia Longoria: Throughout his career, Souter kept defying expectations, and he kept disappointing Republicans. He voted to uphold affirmative action and the Voting Rights Act. It was reported that he drafted a blistering dissent in Citizens United, which was never published. And in the Bush v. Gore election, he rejected Bush's request to stop counting votes. Which brings me to one final story I heard about Justice Souter.

Ashley Lopez: Souter was apparently a mess after Bush v Gore. 

Julia Longoria: NPR politics reporter Ashley Lopez. She heard that the politicized way the Court ruled in that case was part of the reason Justice Souter decided to retire.

Ashley Lopez: And in fact he almost resigned because of the ruling. And, he would like cry sometimes, like wept. 

Julia Longoria: One journalist said Justice Souter was shattered by Bush v. Gore. 

Peter Rubin: [laughs] Shattered. I look, I have no idea.

Julia Longoria: Former Souter Clerk, Judge Rubin is skeptical.

Peter Rubin: I've seen him since then. He's not shattered. You know what I mean?

Julia Longoria: But I put the story to Kermit Roosevelt, who clerked for Souter just a year before Bush v Gore.  

Julia Longoria: Do you know what happened behind the scenes?

Kermit Roosevelt III: Um, I don't know if I can really talk about that.

Julia Longoria: Yeah, why not?

Kermit Roosevelt III: Um, I don't know if he would want me to.

Julia Longoria: Yeah.

Kermit Roosevelt III: I mean, so I can tell you generally speaking, Bush v. Gore was upsetting to Justice Souter, and I think he's said that publicly because it looked as though the justices were behaving as partisans and partisanship is what Justice Souter most firmly believes should not be a part of judging. So, I think it shook his faith in the institution. I think that No More Souters is sort of a poignant phrase because there aren't justices like David Souter anymore. Um, but I think that justices like David Souter are what we need.

Julia Longoria: I, I hear like a certain, like wistfulness or, or disillusionment in, in your voice when you talk about him?

Kermit Roosevelt III: Um, I, I do feel sad because I think we do see the Court tending to take extreme positions and amplify rather than reduce partisan conflict. Justice Souter is sort of an example of what we could have been, the way that the Court could have been. That kind of justice is exceedingly rare nowadays. 

Heather Gerken: Uh, I can say one thing, which was…

Julia Longoria: That’s the so-called Souter whisperer Heather Gerken again. 

Heather Gerken: When he retired, I remember thinking two things. So first, that it was really sad for the Court to lose someone so wonderful. Uh, and such a great judge. He had a clear north star, and he never wavered from it. He always did what was ethical, and it made you believe that it was possible to do and still live in this complicated world, in this complicated profession with these complicated jobs. And he had served his country and his state for a long time, and he was entitled to just be happy.

David Remnick: Heather Gerken, of Yale Law School, speaking on WNYC’s More Perfect.  Which you can find … wherever you listen to podcasts. Now, there’s an epilogue.  

David Souter never replied to the requests by More Perfect for an interview – which was what they expected.  But after months and months, and months, a letter came, addressed to the host, Julia Longoria.  

She took a deep breath, pressed record, and opened the letter. 

Julia Longoria: Dear Ms Longoria, I am so far behind in correspondence I am afraid you will think I am unappreciative of the generosity of your letter broaching the possibility of an interview.  That is not the case nor I do mean to imply any failure to feel thanks for your kindness when I ask you to excuse me from giving the interview that you requested. From my earliest days as a judge, I have felt that we should explain why we are taking the positions that we take by what we write in our opinions and beyond that– and beyond– sorry. 

[laughs]

I have felt that we should explain why we are taking the positions that we take by what we write in our opinions and beyond that should not be engaged in public self justifications. As a consequence, I have made no further comment with only two exceptions in the course of my career. On the one occasion that I accepted an honorary degree, I gave a speech to a college commencement audience and a few months ago I gave an interview to two students from my old high school, who had the job of introducing me at a ceremony unveiling a plaque recognizing me as a former member of the school. I hope you will be generous in tolerating my reticence as you were in your letter to me. Yours sincerely, David Souter.  

David Remnick: This is the New Yorker Radio Hour.  Hope you have a great holiday weekend; thanks for listening.  

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