David Souter went his own way

The George W. Bush appointee was one of a host of GOP-appointed Supreme Court justices who didn't follow a party line.

David Souter at his Supreme Court confirmation hearing. (Library of Congress)

By Frederic J. Frommer

Former Supreme Court Justice David Souter, who died this month at age 85, so angered conservatives with a liberal track record despite being nominated by a Republican president that he inspired the rallying cry “No more Souters!”

But Souter, nominated to the court by President George H.W. Bush in 1990, is just one of several Supreme Court justices who vexed Republican presidents by going their own way, most famously Chief Justice Earl Warren.

When Bush named Souter to the court, many abortion rights supporters were convinced that he’d supply the fifth and deciding vote to overturn Roe v. Wade, the 1973 Supreme Court decision that established a woman’s constitutional right to an abortion. Instead, he went the other way—voting in the 1992 case Planned Parenthood v. Casey, to reaffirm the core holding of Roe. Souter was joined in the 5-4 decision by two nominees of conservative Republican President Ronald Reagan: Sandra Day O’Connor and Anthony Kennedy.

Souter continued to cast mostly liberal votes for the rest of his career on the bench—and waited to retire in 2009, to allow Democratic President Barack Obama to name his replacement, who turned out to be Sonia Sotomayor. Souter’s votes with the more liberal justices mirrored Warren’s from a half-century earlier.

In December, 1952, the court heard arguments in Brown v. Board of Education, the seminal challenge to school segregation, but it punted on a ruling, deciding to hear more arguments the following fall. By the time the court was set to make a ruling in the spring of 1954, President Dwight D. Eisenhower had nominated California Gov. Earl Warren, a fellow moderate Republican, as chief justice.

According to Eisenhower biographer Stephen E. Ambrose, around this time Eisenhower invited Warren to a White House dinner and seated him next to the lawyer for the segregationists, John W. Davis. Warren recalled that Ike talked up Davis, and as the dinner participants were leaving, he took Warren by the arm. “These are not bad people,” Ike said, speaking of the Southerners. “All they are concerned about is to see that their sweet little girls are not required to sit in school alongside some big overgrown Negroes.”

The heavy-handed racist appeal didn’t work. Soon after, Warren wrote the 9-0 ruling for the court that found segregated public schools violated the Constitution.

Years later, Eisenhower would tell friends that the biggest mistake he made as president was appointing “that dumb son of a bitch Earl Warren.” But Ambrose wrote that wasn’t because of the school desegregation ruling; rather, it was in response to 1960s rulings by the Warren Court in criminal and communist cases. Other conservatives shared his anger at Warren. As Jeff Greenfield wrote in 2018, some of them paid for highway billboards that demanded “Impeach Earl Warren!”

In the 1970s, Republicans filled all Supreme Court vacancies; Democratic President Jimmy Carter didn’t nominate any during his single term in the last four years of the decade. But the GOP didn’t capitalize on this mismatch and shift the court significantly to the right, the way that President Donald Trump has. That’s because, unlike today, prospective justices back then weren’t carefully vetted for their ideology.

President Richard Nixon put four justices on the court. One, William Rehnquist, was undoubtedly a conservative. But two others, Chief Justice Warren Burger and Lewis F. Powell, were relative moderates. And a fourth, Harry A. Blackmun, turned out to be a reliable liberal vote on the court, most famously writing the majority opinion in Roe.

When the court ruled 8-0 in July 1974 that Nixon had to turn over tapes and other evidence to the Watergate special prosecutor, Burger wrote the opinion and was joined by two other Nixon appointees, Blackmun and Powell. (Rehnquist disqualified himself from the case because he had worked in the Justice Department.) Nixon resigned a couple of weeks later.

The Nixon appointees did stake out a conservative position on the death penalty—all four dissented when the Supreme Court struck down capital punishment in 1972. Four years later, Blackmun was part of a majority that reinstated it. But by 1994, his final year on the court, he had switched his position, writing in a famous dissent in a death penalty case, “From this day forward, I no longer shall tinker with the machinery of death.”

In 1975, Republican Gerald Ford, Nixon’s successor, appointed John Paul Stevens to the bench. Like Blackmun, Stevens voted with the majority to reinstate the death penalty—and came to regret that vote. In fact, Stevens would become a leader of the Supreme Court’s liberal wing.

Conservatives have also expressed anger at current GOP-appointed members of the court. They were furious with Chief Justice John G. Roberts Jr., a George W. Bush nominee, for voting to uphold Obamacare in 2012. And one of Trump’s appointees, Amy Coney Barrett, provoked conservatives’ ire for voting this year with the majority in requiring the Trump administration to follow a lower court’s order to release foreign aid that the government had frozen. Trump allies assailed Barrett as a “DEI hire” and a “closet Democrat.”

Some on the right have expanded the anti-Souter slogan to “No more Barretts.” But history shows that once justices get on the court, they often chart their own path. Even the most careful pre-nomination vetting can’t predict how a justice will vote on every issue.

Frederic J. Frommer, a writer and sports and politics historian, has written for the Washington Post, the New York Times, the Atlantic, History.com and other national publications. A former Associated Press reporter, Frommer is the author of several books, including “You Gotta Have Heart: Washington Baseball from Walter Johnson to the 2019 World Series Champion Nationals." Follow him on X.

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