WASHINGTON (BP)–David Souter, the U.S. Supreme Court associate justice who has been a consistently liberal vote for nearly two decades despite expectations he would be conservative, is retiring.
President Obama confirmed Souter’s intention May 1. The news media began reporting Souter’s plans to retire the evening of April 30, but there was no direct confirmation from the justice or the court. Obama made the announcement at a White House news briefing, saying he had just talked to Souter on the phone.
Souter, 69, joined the court in 1990 after his nomination by President George H.W. Bush and confirmation by the Senate. Conservatives were promised by the administration his rulings would please them, but his 19-year tenure on the high court turned out to be hugely disappointing to them. He became a part of the liberal bloc of the court, habitually upsetting social conservatives on issues such as abortion and the relationship between church and state.
Speculation now has turned to a replacement, with reports Obama likely would nominate a woman. The president said he would name someone “who shares my respect for constitution values,” The Washington Post reported. Among the names being floated as possible nominees, according to The Post, are Sonia Sotomayor of the U.S. Second Circuit Court of Appeals in New York; Diane Wood of the Seventh Circuit Court in Chicago, and the new solicitor general, Elena Kagan.
“David Souter will stand long beyond his lifetime as a symbol of one of the greatest political miscalculations in American history,” said Richard Land, president of the Southern Baptist Ethics & Religious Liberty Commission. “The mantra of virtually everyone in President George W. Bush’s administration who dealt with judicial nominations was: ‘No more Souters.’ President George H.W. Bush’s chief of staff, John Sununu, had assured his president Souter would be a reliable conservative vote on the court. He turned out to be exactly the opposite and provided the deciding liberal vote on too many issues in too many cases during his tenure.”
Clark Forsythe, senior counsel of Americans United for Life, said Souter “is one of the most pro-abortion members of the United State Supreme Court.”
“During his tenure,” Forsythe said, “Justice Souter voted to uphold abortion on demand and to strike down common sense abortion regulations that the vast majority of Americans support. As many votes on abortion have been 5-4 decisions, his presence on the Court has extended the tragedy of abortion by restricting the right of states to make their own decisions on abortion law.”
Land told Baptist Press, “This retirement will, of course, not impact the court’s balance. President Obama will undoubtedly nominate someone who is as liberal as, if not more liberal than, liberal David Souter, and thus you will just have an old liberal replaced by a young one. President Obama’s ability to sell himself to the American people as a centrist will be hampered severely by his nomination of what will inevitably be a radically liberal justice.”
Jay Sekulow, chief counsel of the American Center for Law and Justice, said Souter’s retirement “marks the beginning of President Obama’s legal legacy — a legacy that will move this country dramatically to the left…. There’s no illusion here — President Obama is poised to reshape the nation’s highest court.”
Souter, a longtime resident of New Hampshire, was not well known when the first President Bush nominated him only months after selecting him for the First Circuit Court. He was considered a “stealth” candidate in the effort to place a conservative on the court a few years after Robert Bork’s nomination went down to defeat in the Senate.
It did not take long for Souter to signal he would not be the justice conservatives had hoped for.
In 1991, he voted with a 5-4 majority in ruling in the Lee v. Weisman decision that a rabbi’s prayer at a middle school graduation ceremony violated the First Amendment’s ban on government establishment of religion.
In 1992, he joined with Associate Justices Sandra Day O’Connor and Anthony Kennedy to lead the way in upholding some state restrictions on abortion but reaffirming Roe v. Wade, the 1973 ruling that legalized abortion throughout the country. The opinion, Planned Parenthood v. Casey, was settled on a 5-4 vote.
From there, it only got worse for conservatives.
Souter voted twice to overturn bans against partial-birth abortion, the first time being in the 2000 Stenberg v. Carhart case, in which he was in the majority. Seven years later in Gonzales v. Planned Parenthood, he was in the minority. Both were 5-4 decisions.
In a major Boy Scouts case in 2000, Souter sided with the minority, which argued that the Boy Scouts did not have a First Amendment right under New Jersey law to bar homosexuals from being troop leaders. The Boy Scouts won the case (Boy Scouts of America v. Dale), 5-4.
Also in 2000, Souter again sided with the liberal bloc in another prayer case in which the majority ruled in a 6-3 decision that student-led, student-initiated prayer at high school football games violated the establishment clause. The case was Santa Fe Independent School Dist. v. Doe.
In the 2003 Lawrence v. Texas case, Souter sided with a 6-3 majority in overturning anti-sodomy statutes nationwide, a ruling which some conservative scholars said paved the way for “gay marriage” legalization.
As recently as April 28 of this year, Souter voted with the minority in arguing the Federal Communications Commission acted outside its authority when it found the Fox network in violation of indecency standards for broadcasting obscenities. The FCC won that case (FCC v. Fox Television Stations), 5-4.
Tom Strode is Washington bureau chief of Baptist Press. With reporting by Michael Foust, assistant editor of Baptist Press.