Obama: David Souter retiring from high court

Friday, May 1, 2009

WASHINGTON — After 18 years in a city he loved to hate, Justice David H. Souter can finally bid Washington farewell.

Last night, National Public Radio first reported Souter's plans to retire from the high court when the term ends in late June. Early this afternoon, President Barack Obama confirmed Souter's intent to retire.

The retirement is likely to take effect only once a successor is confirmed; Obama's pick is likely to be a liberal-leaning nominee, much like Souter, a justice who distinguished himself in several areas of First Amendment jurisprudence, including campaign-finance and establishment-clause cases.

Souter generally supported restrictions on campaign contributions and viewed the establishment clause as erecting a high barrier of separation between church and state.

In the area of campaign finance, he authored the Court’s majority opinions in Nixon v. Shrink Missouri Government PAC (2000), Federal Election Commission v. Colorado Republican Federal Campaign Committee (2001). In the establishment-clause arena, he wrote the main opinion in McCreary County v. American Civil Liberties Union (2005), which found that Ten Commandments displays in two Kentucky courthouses violated the principle of church-state separation. “This is no time to deny the prudence of understanding the Establishment Clause to require the government to stay neutral on religious belief, which is reserved for the conscience of the individual,” he wrote.

Souter also played a key role in the development and expansion of the secondary-effects doctrine. In a concurring opinion in Barnes v. Glen Theatre (1991), Souter reasoned that government officials could regulate nude dancing because of the harmful, secondary effects associated with such expression — such as increased crime and decreased property values. Souter’s opinion extended the doctrine from its traditional application to land-use zoning cases to direct regulations on the content of erotic expression.

Nearly 10 years later in City of Erie v. PAP’s A.M. (2000), Souter wrote a dissenting opinion in which he retracted his earlier position to a certain extent: “I may not be less ignorant of nude dancing than I was nine years ago, but after many subsequent occasions to think further about the needs of the First Amendment, I have come to believe that a government must toe the mark more carefully than I first insisted. I hope it is enlightenment on my part, and acceptable even if a little late.”

For each of his 18 years on the high court, Souter worked seven days a week through most of the Supreme Court's October-to-July terms, staying at his office for more than 12 hours a day. His lunch most often consisted of yogurt and an apple eaten at his desk; his supper a quickly prepared late-night meal at the apartment he rented a few miles from work.

He once told acquaintances he had “the world's best job in the world's worst city.”

“When the term of Court starts I undergo a sort of annual intellectual lobotomy and it lasts until the following summer when I sort of cram what I can into the summertime,” Souter said wryly during a rare public speech in March. The comment drew laughter from the audience of humanities teachers at the American Academy of Arts and Sciences.

A history buff renowned among friends and former clerks as an excellent storyteller with a wonderful sense of humor, Souter headed for his native New Hampshire as soon as he could at the end of the Court's term every year.

“He doesn't fit what I think most people would assume, that he's Silent Cal, the Calvin Coolidge-type New Englander,” said Meir Feder, a New York lawyer who worked for Souter during his first Supreme Court term.

Souter was appointed to the Court in 1990 by President George H.W. Bush after just a few months as a federal appeals court judge, but with many years experience as a prosecutor, attorney general, trial judge and state Supreme Court justice in New Hampshire.

Souter earned his bachelor's and law degrees from Harvard around a stay at Oxford University as a Rhodes scholar.

He became New Hampshire's attorney general in 1976 and became a state court judge two years later. By 1990, he was on the federal appeals court in Boston for only a few months when Bush picked him to replace Justice William Brennan on the Supreme Court.

Virtually unknown outside his home state, he was viewed warily both by liberals and conservatives. Liberals feared that his appointment by an abortion opponent would help spell the end of the guarantee of abortion rights. It didn't; Souter in 1992 voted to uphold Roe v. Wade. In the same year he also voted to maintain the court's longtime ban on government-sponsored prayers in public schools.

Conservatives worried that in his praise for the liberal lion he succeeded, Justice Brennan, Souter was charting a much more moderate course than they would have liked or expected from a Republican nominee.

Eighteen years later, Souter was firmly among the Court's liberals.

He resisted the spotlight that has attracted liberal and conservative justices alike.

“He doesn't believe in overexposure,” said Thomas Rath, Souter's longtime friend from New Hampshire.

Of the justices who occupied the high court's middle ground, Souter was the one most likely to challenge, in exchanges of written opinions, the aggressively conservative views of Justice Antonin Scalia.

“Souter seems more passionate about taking on Scalia and combating the novelty of Scalia's more restrictive views,” George Washington University law professor Mary Cheh once said of him.

When writing for the Court in 1994 that a state could not create a separate public school district for Hasidic Jewish children, Souter fended off a Scalia dissent in customary fashion. “Justice Cardozo once cast the dissenter as 'the gladiator making a last stand against the lions.' Justice Scalia's dissent is certainly the work of a gladiator, but he thrusts at lions of his own imagining,” Souter said.

Souter was the nation's 105th justice; only its sixth bachelor.

Although hailed by The Washington Post as the capital city's most prominently eligible single man when he moved from his native New Hampshire, Souter resolutely resisted the social whirl.

“I wasn't that kind of person before I moved to Washington, and, at this age, I don't see any reason to change,” the intensely private Souter told an acquaintance.

At the American Academy, when asked how to approach members of Congress to ask for more money for the humanities, Souter suggested focusing on the history buffs in Congress.

But he prefaced his advice with a self-deprecating comment about the failure of judges to persuade Congress to raise their pay.

“You should know that I've been on the judicial salary committee for the last couple of years and the lesson to be learned from that is,” Souter said, “whatever I tell you, do the opposite.”