David Souter never belonged on the Supreme Court, something even he seemed to acknowledge by his decision to resign from a lifetime appointment in good health at the age of 69.
Winston Churchill’s description of a political opponent applies to Souter: a modest man with much to be modest about.
Souter was nominated by the first President Bush during an era when liberal Democrats controlled the Senate Judiciary Committee, and on the heels of President Reagan’s failure to get conservative Robert Bork onto the Court. Souter was touted as a “stealth” conservative who could get approved by the Senate because he hadn’t really done anything they could complain about.
For about three years, Souter seemed to confirm that judgment. But beginning with his decision to reaffirm the essential holding of Roe v. Wade and his decision to block a simple prayer from being offered at a high school graduation, Souter has for many years formed a liberal, activist voting bloc with two Clinton appointees and Justice John Paul Stevens, appointed by President Ford.
The lesson for those who oppose liberal judicial activism? Make the case for originalism — as Chief Justice Roberts did very effectively — and let the political chips fall where they may. We can’t win if we aren’t willing to make an argument for the correct approach to the judiciary.
Once again we have a justice appointed by a conservative Republican who has wanted to leave the Court for years, but instead waited around for purely political reasons so that a liberal Democrat could pick his replacement.
For Souter — having done his part to prevent the Rehnquist and Robert courts from fixing past judicial activism, and having deprived new generations of preborn children of the opportunity to have their lives protected by law — now he can return to the anonymity and solitude he so strongly desired and richly deserves.