#souter — Public Fediverse posts

[Not from the NYT article, still my #DavidSouter 🧵]

#Souter planned his retirement from #SCOTUS to occur during a Democratic presidency as he was keenly aware of Republican designs on turning the court into a political arm.

NPR 2009:
Factors in his decision no doubt include the election of President #Obama, who would be more likely to appoint a successor attuned to the principles Souter has followed as a moderate-to-liberal member of the court's more liberal bloc over the past 2 decades.

#law

But in the following year, as Kennedy reverted to greater agreement w/the Chief Justice, #Souter found himself on the minority side of far more split decisions.

…The 1992-93 decline of the Souter-O'Connor-Kennedy trio led some observers to highlight how Kennedy had moved back rightward, but Paul Barrett of WSJ contended that actually the "most striking development" was Souter's "emerging #liberal streak."

#DavidSouter #SCOTUS #law #judiciary #JudicialIndependence #ethics

…[A] close friend, echoing how Casey "wasn't a surprise," especially given "David's respect for #precedent," stressed that people did not appreciate how "David's a #judicial conservative, NOT a #political conservative.”…

Neither the 1992-93 or 1993-94 terms would prove as significant as 1991-92. The most striking statistic of 1991-92, as Casey exemplified, was the degree to which Anthony Kennedy had shifted away from Rehnquist & toward #Souter & O'Connor.

#DavidSouter #SCOTUS #law #judiciary

Harry Blackmun's concurrence accurately termed the #Souter-O'Connor-Kennedy joint opinion "an act of personal courage & constitutional principle," & Blackmun added that "what has happened today should serve as a model for future Justices & a warning to all who have tried to turn this Court into yet another #political branch."

#DavidSouter #SCOTUS #law #judiciary #JudicialIndependence #ethics

#Souter closed by reiterating that #Casey, & #Roe, were about far more than simply #abortion:
“A decision to overrule Roe's essential holding under the existing circumstances would address error, if error there was,at the cost of both profound & unnecessary damage to the Court's #legitimacy, & to the Nation's commitment to the rule of #law. It is therefore imperative to adhere to the essence of Roe's original decision, & we do so today."
#DavidSouter #SCOTUS #law #judiciary #Independence #ethics

Then #Souter moved to the core of his argument, 2 paragraphs that rank among the most memorable lines ever authored by an American #jurist:

"Where, in the performance of its judicial duties, the Court decides a case in such a way as to resolve the sort of intensely divisive controversy reflected in #Roe & those rare, comparable cases, its decision has a dimension that the resolution of the normal case does not carry.

#DavidSouter #SCOTUS #law #judiciary #JudicialIndependence #ethics

That background had not been fully understood by the commentators & Senators who had debated what his 1990 nomination meant for the future of #Roe & other fundamental rights. If they had, what was now happening in Casey would not have come as a surprise.

#Souter's analysis reflected a realism not always found in high court pronouncements:

#DavidSouter #SCOTUS #law #judiciary #JudicialIndependence #ethics

When announcing decisions from the bench, Justices usually offer a summary or read brief excerpts. On this morning, however, each of the three—first O'Connor, then Kennedy and finally #Souter—orally delivered major portions of the trio opinion. Journalists quickly realized they were witnessing an unprecedented event.

#DavidSouter #SCOTUS #law #judiciary #Independence #ethics

Not since the famous 1958 Little Rock school desegregation case of Cooper v. Aaron, when all 9 Justices signed a ringing reaffirmation of Brown v. Board of Education, had any #SCOTUS opinion been presented to the American people as formally authored by more than one Justice. But now, symbolically invoking the powerful precedent of Cooper, Justices O'Connor, Kennedy & #Souter issued their plurality decision in Casey as an explicit trio opinion.

#DavidSouter #law #judiciary #independence #ethics

In early June, #Souter, O'Connor & Kennedy distributed to their colleagues initial copies of their joint opinion. As David Savage later wrote in The Los Angeles Times: "Rehnquist & Scalia were stunned. So, too, was Blackmun." And so, on Monday morning, June 29, 1992, the final day of the term, commentators were unprepared for the result in #PlannedParenthoodVCasey.

#DavidSouter #SCOTUS #law #RoeVWade #judiciary #JudicialIndependence #ethics

But while 7 Justices indicated that they would uphold most of the PA restrictions, only 4—Rehnquist, White, Scalia & Thomas—wanted to explicitly vitiate #Roe. O'Connor, Kennedy & #Souter, however, all believed the restrictions could be upheld at the same time that Roe was left standing. While Rehnquist himself undertook the drafting of Casey's apparent majority opinion, Kennedy's surprising stance gave Souter & O'Connor the opening toward an intermediate outcome….

#DavidSouter #SCOTUS #law