RIP Justice David Souter

The Coffee Shop
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Why can’t we have more justices like him again.

BREAKING: Justice David Souter, Liberal Republican Appointee, Dies

By Jimmy Hoover and Katie Buehler

·(https://www.law360.com/insurance/articles/953648?nl_pk=da8eb924-2fce-4592-b024-a4b9c609bcec&utm_source=newsletter&utm_medium=email&utm_campaign=insurance&utm_content=953648&read_main=1&nlsidx=0&nlaidx=0#)

Law360, Washington (May 9, 2025, 9:27 AM EDT) – Retired Justice David H. Souter, who served on the U.S. Supreme Court from 1990 to 2009, has died at 85, the court announced Friday.

Justice Souter, appointed by President George H.W. Bush, carved out a liberal legacy on the court before returning to the quiet of New Hampshire at 69 years old.

Justice Souter died peacefully Thursday at his home in New Hampshire, the Supreme Court said. He served on the court for nearly 19 years before retiring in June 2009.

Justice Souter “brought uncommon wisdom and kindness to a lifetime of public service,” Chief Justice John Roberts said in a statement Friday. “After retiring to his beloved New Hampshire in 2009, he continued to render significant service to our branch by sitting regularly on the court of appeals for the First Circuit for more than a decade. He will be greatly missed.”

During his 19 years on the court, Justice Souter followed a well-trodden path of 20th century Republican appointees whose votes on divisive issues such as abortion would gall the GOP. His retirement in 2009 allowed President Barack Obama to choose Justice Sonia Sotomayor as his first nominee to the court.

Among his notable decisions were 1992’s Planned Parenthood of Pennsylvania v. Casey , in which he co-authored a plurality opinion with Justices Sandra Day O’Connor and Anthony Kennedy affirming the core holding — since overturned — in Roe v. Wade that women have a constitutional right to abortion.

Justice Souter also joined the dissenting justices against the majority’s 2000 decision in Bush v. Gore , which effectively handed the presidential election to George W. Bush by ending the Florida recount. A few years before stepping down, Justice Souter also provided the crucial fifth vote siding with the American Civil Liberties Union in a challenge to three Kentucky counties that had begun displaying copies of the Ten Commandments in public schools and courthouses.

Less well-known was Justice Souter’s impact on civil litigation in the federal court system. His opinion for the court in Bell Atlantic Corp. v. Twombly , which raised the pleading standards for civil plaintiffs, armed corporate defendants with a useful weapon to dismiss lawsuits in a variety of cases, while his decision in Exxon Shipping Co. v. Baker put a cap on punitive damages awards in maritime cases. In Baker, Justice Souter said that punitive damages could not exceed compensatory damages, and reduced a $2.5 billion award for the victims of the Exxon Valdez oil spill, which originally stood at $5 billion, down to $507 million.

A retiring figure who spurned press interviews and the Washington social scene, Justice Souter once reportedly confided to a friend that he had “the world’s best job in the world’s worst city.” His disdain for life on the court — which is said to have deepened after the court’s Bush v. Gore decision — was so well-known that it came as little surprise when he announced his intention to retire in May 2009 and move back to his family farmhouse in Weare, New Hampshire.

“I drove north from Washington [to New Hampshire] with no regrets about the prior 19 years or about the decision to try living a more normal life for whatever time might remain,” he said in a revealing speech to his Harvard class during their 50th reunion in 2011.

For Justice Souter, a “normal life” meant keeping up his voracious appetite for history books that, to his chagrin, he constantly had to subsume to the Supreme Court’s busy docket. “I’ve had so little chance for serious reading for the last couple of decades, as my job devoured most of the time I had,” he told his classmates.

Absent those duties, Justice Souter said he was now free to “follow out some lines of interest suppressed as far back as college,” such as picking up books about the classical period, the Carolingian dynasty during the Holy Roman Empire, Britain before the 14th century, and American Puritanism — those written by “historians after Perry Miller,” he clarified.

Justice Souter attributed his bookish habits to “a desire for escapism, as I look out at the nation and world with little optimism.”

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A good Justice, who avoided a lot of the partisan side-taking that we see today. He was the kind of judge who’d never get appointed today, and we are worse off for that.

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Hope you’ll indulge a sincere question from across … well, far, far away.

Watching U.S. politics over the past decade, one thing continues to strike me as both fascinating and, at times, unsustainable is the the sheer power your Supreme Court holds and how bitterly politicised it’s become.

From a distance, the underlying structure seems quite sound: an executive, a legislature, and a judiciary, all designed to check and balance one another. In theory, it’s a remarkably thoughtful system. But in practice, it feels like the judicial branch, particularly the Supreme Court, wields an outsized role in shaping American life.

Abortion, gun rights, voting access, religious expression… all routinely decided not through elected representatives, but by a small group of nine unelected justices, appointed for life. What puzzles me is that no other mature democracy gives this much enduring, unchecked power to such a small body.

What’s more, reform efforts (such as term limits, ethics codes, or changes to court size) seem politically radioactive. Even modest proposals are met with cries of “court packing,” as if the only choices are to leave it untouched or set fire to the whole thing…

Why don’t you consider something more measured?

  • Fixed terms?
  • Staggered appointments so each president gets a predictable number?
  • Binding ethics code, particularly in light of recent controversies?
  • A larger bench with more diverse legal and life experience?

In many democracies, courts are respected precisely because they exercise modesty and restraint. But in the U.S., the Supreme Court often feels like a cultural battleground; stepping in where Congress appears paralysed and the electorate is sharply divided.

Is it simply a case of constitutional rigidity? Institutional inertia? Or do Americans, in some way, value the Court’s ability to act where other branches fail?

I am asking not to criticise, but to understand. From the outside, it seems a system this powerful ought to renew itself from time to time; or at least find ways to better reflect the people it ultimately serves.

Apologies for the thread hijack.

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Sorry for the slow response. I recently returned from a very long hike. I may break this into a few parts.

For the most part, our federal court system has served us well. It has contributed to the stability of the democracy. It has given power to our Constitution in ways that would not happen if we mostly relied on the President and Congress to decide what it means.

Some of the worst SCOTUS decisions, like Korematsu, were supportive of what other branches were doing. Weakening SCOTUS would not have solved the Japanese internment issue. It would have kept the power in the hands of those who wanted internment.

At any given time, the side of our politics that feels it is in the minority on the Court will naturally want the Court reined in a bit. But, taking a broader view, and ignoring which way the pendulum is swinging at the moment, I don’t think there is a strong case for weakening the Court as an institution.

Although Constitutional issues get most of the attention, the Court also has had to fill the gaps left by our inept Legislature. In my area of the law, which deals with how companies can/must compete with each other — a tremendously consequential issue — the pertinent statute basically (I am only exaggerating slightly) consists of one sentence. It was written in the 1890s. All of the details of fleshing out that very general sentence and developing all of the doctrinal details have been left to the Court. Has it worked well? I suppose that is debatable, though we do have a very vibrant economy. Would we have been better off if the Court mostly said “we can’t put more flesh on the thin statutory bones but must leave that to Congress”? I doubt it.

So, that’s my take on the general role of the Court as a more or less co-equal branch. Some details in the next post.

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Fixed terms that are staggered so that each 4-year Presidential term gets 2 SCOTUS picks seems like a good idea. At least it helps solve the problem of Justices timing their retirement so that their seat stays in their party. Our current system makes a mockery of Roberts’ claim that there is no such thing as a D or R judge. Oh yeah? Let’s see if he retires when a D is President.

There would still be some major details to sort through, including: what happens if a third Justice dies or is incapacitated during the 4-year term? Do we go with 8 Justices until we get a new President? Or, what happens if Congress refuses to confirm a nomination? But, perhaps those details are manageable.

Ethics codes? SCOTUS now says it has (or always had) a code. The real issue is enforcement. We don’t dare give Congress the power to discipline a Justice with fewer votes than would be required for impeachment.

Though Thomas and Alito have given salience to the issue, we should not overstate the problem. For most of our history, Justices have behaved reasonably ethically. The big issue is the polarization of the process by which we pick Justices, not any corruption in how they behave once on the Court. I am also moderately hopeful that the light that Thomas unintentionally brought to the issue will help rein in excesses by other Justices.

I am not optimistic that we will ever return to the days when Ike picked Warren, JFK picked White, Ford picked Stevens, or Bush I picked Souter. One could argue that Obama’s choice of Garland showed some moderation, but that was only because a traditional D pick had no chance, and not because a relatively elderly Garland was who Obama really wanted.

Expanding the Court won’t solve that problem. Though any single pick would be less consequential if there were a lot more Justices, there would still be great pressure and incentive to pick a young judge who is strongly on your side. Our appeals courts have many judges and a process for randomly assigning judges to a case, with some mechanism for seeking review by the full court if you don’t like the outcome. But, I have not seen evidence that such a system does much to change how judges vote.

Instead, it just adds more layers. That system would have the advantage of enabling the Court to take more cases. However, that seems peripheral to most objections to how the Court operates. That is, I doubt many people who dislike the Court’s rulings would feel better if the Court decided even more cases.

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Thanks for taking the time to write such a comprehensive and well-reasoned response, @ike. It’s a real pleasure to read something so genuinely considered.

Your point about the Court’s stabilising function is well taken, particularly in areas where Congress has abdicated responsibility. That said, I keep coming back to what feels like a structural paradox: if impeachment is the only real mechanism for accountability, and it’s politically unworkable in this hyper-partisan climate, then does meaningful accountability actually exist?

You note that the real issue with ethics is enforcement; could an independent, non-partisan ethics body offer a middle ground? Is there any rationale why SCOTUS is exempt from the oversight that already applies to lower federal courts?

You’ve persuaded me that court expansion might not solve the root issue, but what about narrower reforms? Could Congress at least mandate recusal in cases of clear conflicts, rather than relying on personal honour? And would real-time disclosure of gifts and outside income act as a deterrent, or likely just fuel more outrage?

In a system where formal mechanisms break down, perhaps the best path forward is to diversify the tools of accountability. Appreciate your clarity @ike, thank you.

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Slight thread hijack but I’ve done a couple walking tours in Mt View cemetery where he is buried. Fascinating story.

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Agreed for many reasons including his retiring at 69, despite living to 85 (we have a mandatory retirement age of 70, introduced by Constitutional amendment back in 1977).

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Thanks. I never thought about Korematsu the person, just the case and what it meant. Glad to see he lived another 60 years after the War.

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Structural accountability essentially does not exist. The Justices can do what they want, apart from maybe explicit bribery, with little fear of formal consequences.

However, we should not underestimate the importance of other consequences. Reportedly, they do care what the other Justices think. And they do care about their legacy.

While it would be good to have some non-partisan body offering its assessment of malfeasance — even if it lacks the power to do anything beyond shaming — let’s not lose sight of what goes on in the other two branches. The corruption and profiteering that passes in those two branches are not a defense to bad behavior by Justices. But, they are relevant to how the Justices would react to any attempt to rein them in.

We should strengthen the laws on mandatory disclosure of gifts, travel, and honoraria. But, so long as the Court takes the view that it can only be punished through impeachment, it’s not clear how much power any enforcement body could have. And, having Congress members who engage in insider trading sit in judgment of a Justice who failed to disclose a book deal would be a theatrical farce.

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This may not be a compelling rationale, but the Court has a different dynamic. It sits with all 9 Justices in every case (except for recusal). They all occupy the same building. They spend a huge amount of time together.

Other judges are not like that, for the most part. They are geographically dispersed. The district court judges each have their own docket. I think Aileen Cannon is the only federal district judge in that building.

The appeals court judges see each other when they are assigned to the same panel. But, that is just a passing thing. Otherwise, they may live hundreds of miles apart and not see each other that often.

So, the institutional glue is very different.

ETA: The Ninth Circuit has more than 40 judges (including senior judges) in more than a dozen locations, from Honolulu, to Phoenix, to Seattle to Anchorage.