David Hackett Souter: Traditional Republican On The Rehnquist Court

by Tinsley E. Yarbrough

When the first President Bush chose David Hackett Souter for the Supreme Court in 1990, the slender New Englander with the shy demeanor and ambiguous past was quickly dubbed a "stealth candidate". Since his appointment, Souter has embraced a flexible, evolving, and highly pragmatic judicial style that embraces a high regard for precedent--even liberal decisions of the Warren and Burger Courts with which he may have personally disagreed. Ultimately, Yarbrough contends, Souter has become the principal Rehnquist Court opponent of the originalist, text-bound jurisprudence that many of the more conservative Justices profess to champion. Sifting through Souter's opinions, papers of the Justice's contemporaries and other relevant records and interviews, esteemed Supreme Court biographer Tinsley Yarbrough here gives us the real David Souter, crafting a fascinating account of one of the heretofore most elusive Justices in the history of the Court.

Genres: Law, Biography, History

311 pages, Hardcover

First published January 1, 2005

About the author

Tinsley E. Yarbrough is Arts and Sciences Distinguished Professor, Department of Political Science, East Carolina University.

Reviews

[Lukasz Pruski · Rating 3 out of 5]

"[...] he's a very private person and by most modern standards, a peculiar person. He's so solitary..."
(Nina Totenberg of the NPR, on judge Souter's nomination to the Supreme Court)

Again I succumbed to my fixation on the workings of the Supreme Court. Tinsley E. Yarbrough's David Hackett Souter, subtitled Traditional Republican on the Rehnquist Court, portrays one of the perhaps lesser known yet very interesting Supreme Court justices of the recent years. Justice Souter was nominated by George W. H. Bush in 1990 to replace the famed William Brennan, and confirmed by the Senate by an impressive 90-9 vote. The book had been written in 2005 so it does not cover the entire judicial career of Justice Souter who retired in 2009 at a relatively young age of 70 (it feels so good to write the word "young" next to the number 70!)

This a serious, technical, and a somewhat lawyerly book, addressed more for professionals rather than for legal ignoramuses like this reviewer. Of course I appreciate that the gossip factor is kept at minimum and that there is precious little sensationalism in the book. I am just warning unprepared readers that the author occasionally uses terms that need to be checked for meaning.

We read a little about Mr. Souter's youth, about him being a serious, focused student yet not completely beyond engaging in pranks. While an undergraduate at Harvard he decides to pursue a career in law rather than in theology. Then come the Rhodes scholarship at Oxford, study of law at Harvard, and 10 years in New Hampshire Attorney General office, the last two of these in the top job. Judge Souter's straight upward career path continues with the Superior Court and New Hampshire Supreme Court judgeships to culminate with the highest judicial job in the country. Still, despite the relentlessly upward slope of the trajectory, judge Souter is called a "stealth candidate" at the time of his nomination because of slim paper trail of his legal opinions on controversial issues and lack of national exposure. (Let's not forget that the voluminous paper trail and national exposure, combined with the candidate's arrogance, greatly contributed to the famous failure of judge Robert Bork's nomination.)

During the nomination process the conservatives are worrying whether judge Souter is conservative enough, liberals are worrying that the liberal wing of the Supreme Court will be severely diminished, and the press raises the candidate's "reclusive bachelor lifestyle" (wink, wink, note the pernicious and ugly euphemism 'lifestyle'), his lack of experience with "the real world" issues, and even - in a hilarious supposition - compares Mr. Souter to Chauncey the Gardener, the protagonist of Kosinski's Being There , "a strange little man [...] suddenly thrust into the whirl of American politics."

Well, despite the "stealth" nature of his candidacy, Justice Souter soon becomes one of the most important members of Supreme Court. After his first year, mainly spent as a member of the conservative majority, Justice Souter begins to display quite an independent streak and gradually, yet inexorably drifts leftward, to eventually become one of the stalwarts of the court's liberal wing, along Justices Stevens, Ginsburg, and Breyer, and a principal opponent of the "originalist political philosophy" espoused for instance by Justice Scalia. In constitutional conflicts between federal and state power Justice Souter has usually taken a nationalist position. He has become "the Court's most vigorous defender of church-state separation," and has consistently condemned viewpoint discrimination and threats to free speech.

My complete ignorance of constitutional law prevents me from detailed analysis of the author's theses. Anyway, based on the author's claims the things that impress me the most about Justice Souter are that he has never shown any influence of personal beliefs on his rulings, has always tried to base his opinions on the rule of law, and has invariably kept legal precedent in deep regard. Justice Souter has not been a crusader for any cause, and that's for me the highest praise of a public servant.

Three and a half stars.

[Karl Worsham · Rating 3 out of 5]

The author did a good job given that neither Justice Souter nor his clerks would sit for an interview. But without any real insight into the man or those who worked closest to him, the book offers little more than speculation.

[Andrew McClary · Rating 3 out of 5]

Famous for his quirks and his deep commitment to privacy Justice Souter is definitely one of the trickiest justices to write about. The book definitely does a good job of covering Souter’s life however after reading the biographies and autobiographies of legends during Souter’s time like Justice O’Connor, Scalia, Ginsburg, and Rehnquist, Souter looks extremely uninteresting by comparison. You don’t need a complex understanding of different judicial issues or jurisprudence however you’ll be lost if you don’t have an understanding of how the court/constitutional law works

[Lance Cahill · Rating 3 out of 5]

The author had a difficult challenge with the notoriously private Souter. The book contained interesting biographical information not previously known, gathered through interviews of people who knew Souter and archival research. The most interesting aspect was likely the telling of Souter's confirmation to the Supreme Court with the author convincingly showing that it was reasonable to presume that Souter would be a stealth conservative jurist.

The remainder of the book consists of the author going through Souter's opinions (majority and dissents) by subject. Certainly an interesting compilation of his opinions over the first 15 years of his tenure, but the effort to align this with a method of judicial interpretation was lacking with a poor attempt at calling this traditional Republicanism without an effort to define this prior to the analysis beginning.

[Giuseppe · Rating 4 out of 5]

One of the few written biographies of this quiet and some may say solitary justice. It gives a good background of his career, and his eventual rise to the highest court. Considered a disappointment by conservatives and the President who appointed him, it does provide an example of a man who quite honestly stuck to his own heart and personal interpretation of the Constitution, without succumbing to others' expectations of him, to become one of the more interesting and thoughtful, if still enigmatic, Justices. I think there's a lot more we'd like to know about him, and a more thorough analysis of his jurisprudence, but this book at least filled a void about the man who still, delightfully, remains a bit of a mystery.

[Mazola1 · Rating 3 out of 5]

An interesting look at a private man in a high profile job. Regarded by right wingers as Bush Senior's biggest mistake, the "stealth" justice, his story sheds a great deal of light on the current process of selecting Supreme Court justices, and everything that's wrong with it. Probably neither a right wing nor a left wing President will ever nominate another justice like Souter, because they would rather have a reliable rubber stamp. And that's too bad, because Souter is what a judge should be -- independent and thoughtful, and at least a bit unpredictable.

[probably · Rating 2 out of 5]

A biography of his life before the high court, plus a poorly organized survey of his opinions (due to lack of inside sources, I suppose). There is no uniform theme, no signature opinions, no highlights, no insights. It would be a loss for us all if this is the best effort possible to depict the private and eccentric moderate Republican who couldn't wait to retire the minute Obama was elected.

"The sight of the N.H. State Prison the other day reminded me of you and your family." --Souter to Blackmun

[Geoffrey · Rating 1 out of 5]

I enjoy books on SCOTUS justices, no matter the jurisprudence of the justice, but Yarbrough's book is as disappointing as the justice he writes about.