The late retired Justice David H. Souter’s time on the Supreme Court has become paradigmatic of profound change on the court, as his 19-year tenure straddled an era of increasing polarization in the nation’s politics and helped shape the modern era of judicial confirmations.
Souter, who passed away Thursday at his home in New Hampshire according to a Supreme Court announcement, retired from the high court in 2009 and the vacancy was filled by current Justice Sonia Sotomayor.
Souter, 85, had been appointed to the Supreme Court by Republican President George H.W. Bush in 1990, but his tendency to side with Democratic appointees to the court on issues such as abortion rights led to cries of “No more Souters” among conservatives who increasingly sought ideologically aligned justices.
Ilya Shapiro, currently a senior fellow at the Manhattan Institute, told the Biden administration’s Commission on the Supreme Court in 2021 that Souter’s time on the bench substantially shaped the confirmation process.
Shapiro said the conservative legal movement “learned its lesson” from Souter’s time on the court, with activists placing more emphasis on would-be justices’ proven track record of conservative decisions or writings.
“Once you consider someone who doesn’t have a long judicial record, or at least academic writings to the same originalist-textualist effect, it opens the door to the sort of presidential discretion that has backfired in the past,” Shapiro wrote.
Shapiro said that has led to increased vetting for ideological purity and efforts like President Donald Trump’s decision to publish a list of potential Supreme Court nominees during his initial 2016 run for office. At the time, the court had a vacancy because of the death of Justice Antonin Scalia and the refusal of Republican senators to consider President Barack Obama’s nomination of Merrick B. Garland.
“The entire reason candidate Trump released his list was to convince Republicans, as well as cultural conservatives who may otherwise have stayed home or voted Democrat, that he could be trusted to appoint the right kind of judges,” Shapiro said.
Souter played a key role in numerous high-profile decisions, including voting along with two other Republican appointees in Planned Parenthood v. Casey, the 1992 case where a majority of the court upheld the right to an abortion. He also dissented from the 2000 Bush v. Gore case that stopped the recount in Florida and handed the presidency to George W. Bush.
Souter was the last appointee by a Republican president to receive 90 votes for confirmation, and since his retirement no nominee from either party has received more than 60.
Sen. Sheldon Whitehouse, D-R.I., in a 2023 floor speech about the “capture” of the Supreme Court by conservative groups, credited blowback against Souter with sinking nominees like Harriet Miers, a “rock-ribbed conservative Republican” who President George W. Bush initially selected for a vacancy on the high court.
Bush ultimately would appoint Justice Samuel A. Alito Jr., a reliably conservative justice.
“On the Court were Justices Souter and Stevens — both Republican appointees — but they wouldn’t help the billionaires, so the angry chant went out from the far right: No more Souters. No more Stevenses,” Whitehouse said, according to the Congressional Record.
Souter has been used as a boogeyman in Republican politics for more than a decade. Sen. Charles E. Grassley, R-Iowa, the current Chairman of the Senate Judiciary Committee, told reporters amid the confirmation battle for Sotomayor in 2009 that he hoped she would be a better justice than Souter was.
“I regret the vote for Judge Souter, who turned out to be one of the most liberal members of the Supreme Court,” Grassley said.
In a 2015 Republican presidential town hall on CNN, Sen. Ted Cruz, R-Texas, criticized the appointments of Souter and Roberts as the “easier choice” for their respective presidents than other conservatives because of their thin judicial records.
In 2020, Cruz published a book called “One Vote Away: How a Single Supreme Court Seat Can Change History” which laid out his philosophy for conservative justices. In an appearance on The Mark Levin Show, Cruz criticized the selection of a “stealth candidate” like Souter and other conservatives who have “disappointed” him and other Republicans in the past.
“That’s actually what I look for the most: Do you have a proven record? And have you been through the fire?” Cruz said.
On Friday, Rep. Sylvia R. Garcia, D-Texas, praised Souter’s time on the court, particularly his role in the 1992 Planned Parenthood v. Casey decision.
“Justice Souter was a humble man who held a deep reverence for the Constitution. He believed it spoke louder than party or creed—and he carried that belief with quiet dignity,” Garcia wrote in a social media post.
Chief Justice John G. Roberts Jr. praised Souter in a statement, saying Souter served “with great distinction” and noted that Souter continued to sit on cases in the U.S. Court of Appeals for the 1st Circuit after his retirement.
“He brought uncommon wisdom and kindness to a lifetime of public service,” Roberts’ statement said. “He will be greatly missed.”
Kannon Shanmugam, a partner at Paul, Weiss who specializes in Supreme Court litigation, called Souter “a peach of a man” in a social media post Friday. Shanmugam also noted the “no more Souters” rallying cry among conservatives.
“But I wonder whether, in this fractious time, we actually need more David Souters, rather than fewer. On this gray morning, the world certainly feels like a poorer place without David Souter in it,” Shanmugam wrote.
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