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May 10, 2025 05:45-06:44 - CSPAN
58:49
Justice David Souter's Fifth Anniversary Observance
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On C-SPAN, C-SPAN Now, our free mobile app, or online at C-SPAN.org.
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Former Supreme Court Justice David Souter has died at the age of 85.
Appointed to the High Court by President George H.W. Bush in 1990, he served from 1990 until 2009.
Justice Souter appeared on C-SPAN many times, and you can watch those programs in our video library.
They include his confirmation hearings, his swearing-in ceremony in 1990, and remarks on the Constitution from 2009, speaking to his alma mater, Harvard University.
It's all available to you at our website, c-span.org.
I am most pleased to announce that I will nominate as Associate Justice of the United States Supreme Court a remarkable judge of keen intellect and the highest ability, one whose scholarly commitment to the law and whose wealth of experience mark him of first rank.
Judge David Souter of the United States Court of Appeals for the First Circuit.
This week on America and the Courts, we take note of Justice David Souter's nomination to the U.S. Supreme Court.
Over the next hour, you'll hear portions of Justice Souter's confirmation hearing, comments from friend and colleague Warren Rudman, and from author and historian David Garrow.
First, some background.
David Souter was born in 1939 in Melrose, Massachusetts, and later moved with his family to Concord, New Hampshire.
He graduated Harvard University in 1961 and was given a Rhodes Scholarship to study at Oxford.
In 1966, he graduated from Harvard Law, one of eight living justices to attend Harvard Law.
In 1976, David Souter was appointed Attorney General for the state of New Hampshire, succeeding his friend and colleague Warren Rudman.
Two years later, he was named to the New Hampshire Superior Court.
In 1983, David Souter joined the Supreme Court of New Hampshire.
In April of 1990, he was appointed to the U.S. Court of Appeals for the First Circuit by President George Bush.
Three months later, President Bush nominated him to the High Court, replacing retiring Justice William Brennan.
justice david souter ▲ ● ▼
If it were possible for me to express to you the realization that I have of the honor which the President has just done me, I would try and I would keep you here as long tonight as I had to do to get it out.
But I could not express that realization, and I'm not going to try to do the impossible.
unidentified
David Souter's confirmation hearing was held in September.
He was introduced to the Senate Judiciary Committee by Warren Rudman.
On the New Hampshire Supreme Court, Judge Souter demonstrated that he is a classic conservative.
Judge Souter respects precedent, applies the law to the facts before him without predefined conclusions, is committed to the application of the traditional rules of statutory construction and constitutional interpretation, and recognizes the proper role of judges in upholding the democratic choices of the people through their elected representatives.
As recently as April 13, 1990, Judge Souter wrote as a member of that court, the basic scheme of the Constitution is a limitation of powers.
Government is limited and courts and legislatures can only do what they're authorized to do.
Judge Souter's opinions are admired for their crispness, for their strength of reason, for their clarity, and for the intellectual attainment they demonstrate.
His record makes clear his commitment to the rule of law, his full understanding of judicial restraint and precedent.
I believe that his judicial philosophy reflects the thinking of the great Justice Oliver Wendell Holmes, as expressed in Missouri, Kansas, and Texas Railway versus May.
That quote says, great constitutional provisions must be administered with caution.
Some play must be allowed for the joint of the machine.
And it must be remembered that legislatures are the ultimate guardians of the liberties and welfare of the people in quite as great a degree as the courts.
Much has been made of David's New Englandness.
I think that's a word.
I'm not sure what it means.
You don't have to spend much time in our state or our region at this time to appreciate its special qualities.
I know, Mr. Chairman, that several members of this committee have had first-hand experiences in New Hampshire, and you know that it's indeed a very special and a very unique place.
But New England and New Hampshire are not just states of mind.
They are real places where real things happen to real people.
There is no demographic profile of the perfect judge.
The people who we seek to discharge these responsibilities must have certain human qualities, not fixed life resumes.
I know that David Souter, shaped by his experiences, knows that judges must understand that their decisions are not mere academic or scholarly exercises, but rather the best hope of resolving human dilemma.
Judges must realize that real people are impacted by what they do, that the essence of judging is its humanity.
I am confident that my friend David Souter knows that.
Finally, Mr. Chairman, I must say that it is remarkable that there are some here in Washington who view a man who has a single-minded dedication to his chosen profession, the law, and possesses great qualities of humility, graciousness, frugality, charity, reverence to his faith and to his family, is somehow regarded as an anomaly and somehow out of touch with life.
I believe most Americans see these as endearing and desirable qualities all too often sacrificed for the frenetic pace of modern life.
Senator Warren Rudman, that was five years ago.
Today, in 1995, do you think that David Souter has lived up to your expectations that you articulated then?
He has only lived up to my expectations, but exceeded them.
I am so proud, first as his friend, and second as someone who brought him to the attention of President Bush and then essentially shepherded his nomination through.
He has been absolutely outstanding.
You talked in your comments then about how he had a respect for legislatures.
You see that in evidence in his decisions?
I certainly do.
I certainly do.
And I also say something that I referred to in those opening introductory remarks, as well as as he well expressed during the hearings themselves, his respect for starry decisis.
And I think the most extraordinary example of that was the remarkable opinion two years ago, co-authored by Justices Souter Kennedy and O'Connor in the case in Pennsylvania involving, I believe, Planned Parenthood versus Casey.
That was the abortion case.
Remarkable piece of writing showing the respect for the institution of the court and the value of consistency of opinions that can be constitutionally supported.
Your last comment that we just saw referred to his lifestyle, which got a lot of media attention.
Do you know that he has changed any form of his lifestyle since coming to Washington?
Not at all.
He's the same warm, witty, friendly person who works very hard, too hard, just loves time with his friends.
There's not enough of that.
Of course, his mother has died since that time, in the last year, actually.
And he has so many friends, and he spends the time he can with them.
But he works very, very hard.
And he always has.
He is, as I said during that introduction, really very dedicated to the law.
How much contact do you have with him?
Oh, considerable.
I hope to see him in the next few days.
I have not seen him since he left this year when the court recessed.
But we talk to each other a fair amount.
We don't see each other as much as we would like to because we're both very busy, but we are still very close.
How do you think that the legal press or the general press has characterized his service to date?
Oh, I think it's been fair.
Of course, there are those in the far right who he is a great disappointment to because somehow they might have been told by people who didn't know that somehow he was part of the new right, which he certainly isn't.
He's a classic conservative, and anyone who doesn't believe that ought to read not only that case that I just cited, but the case in Rhode Island involving prayer in school, in which he wrote an opinion involving the establishment clause, which I've been told by some law professors whom I deeply respect is probably the best exposition on the establishment of the cause that's ever been claused, that's ever been written.
You know, in this court, David, I guess, appears to be somewhat left of center, but that's because this court lately has been very right of center.
Where do you put him on that burden?
You put him left of center yourself?
I do, and I think that it's early.
The court will evolve.
He essentially is one who is, as I described him.
He takes each case and its merits and on the basis of the law and the Constitution.
He is not rigid.
He is not an ideologue.
Ideologues are predictable.
David Souter is not predictable because unless you really study the Constitution carefully and the law carefully, I think then you can predict.
If you try to predict based on some visceral impression, I don't think you can predict.
Well, based on that, looking over the five years, is there anything about his service there that has surprised you?
Not really.
I know, and I think during the, nor should it surprise anyone in the Senate, if you listen carefully to what he said during those confirmation hearings, his dedication to civil rights and the reading of the Constitution as it gives people civil rights was very clear.
His view of stere decisis and what he called institutional reliance on important decisions, which of course was reflected in the Pennsylvania case, has certainly come through.
I think that his decision, which got a unanimous vote on the St. Patrick's Day parade in Boston, and whether Gays who wanted to march in that privately sponsored parade could, was a strict reading of the Constitution and yet left room to make sure if there were state-sponsored parades, that then you would have state action and you would have a different result.
No, he has not surprised me, nor has he surprised those who know him well and those judges who served with him.
I should have asked you this earlier.
Define stere decisis and why is it so significant to David Souter?
Well, of course, stere decisis is what pretty much has made this court great over the years.
It's something the American people can rely on.
What it simply means is that you respect decisions that have been made.
You don't overturn them every term.
They ought to have some bodies, some life to them.
Obviously, if they're absolutely dead wrong and deprive a constitutional right, that's something else.
But what David said during those hearings, and I agree with totally, is that when institutions in society come to rely on a decision of the United States Supreme Court, you don't overturn that lightly.
And if you want to take just two cases that are known to most Americans today, you would have to take Brown versus the school board, ending segregated schools, and Roe versus Wade, which gave women the right of choice.
Whether you agree or disagree with those decisions, very few would disagree with Brown today.
Many still disagree with Roe.
Whether you agree or disagree, to overturn either of those decisions is, to my way of thinking, almost unthinkable.
Can you imagine a court now overturning Brown?
Can you imagine the effect that would have on American society?
I dare say it would tear society apart.
And David said during those confirmation hearings that the way the American people relied on these things was extremely important.
That is not to say you uphold a decision.
It's obviously wrong.
But obviously neither Brown nor Roe was obviously wrong.
Given the contact you've had with him over the years respecting his privacy, can you talk about how he has adjusted to life in the court, relationship with the other justices?
He has an excellent relationship with his colleagues.
And I think that is not just my opinion.
I think the Washington Post did a piece on the court about, what, six or eight months ago, and I kind of laughed, referred to Justice Souter, my friend David, as Mr. Collegiality.
He is well liked by everyone there.
I do know that.
Obviously, he has substantial disagreements on the law with many, but he gets along well.
He leads a fairly isolated life outside of the court because he works so hard.
He works really six and a half days a week, does attend some social events and has some friends, but is very dedicated to the law.
Can you read anything into the way he runs his office?
For example, the selection of clerks, how many clerks, that sort of thing?
I don't think so.
The only thing I think you can read into it is if you look at the background of the various clerks, you'll find that they don't fit a mold.
Some have worked for very liberal judges and professors in law school.
Some have been very conservative.
David's looking for quality of mind, of thought, of expression, ability to write.
He's not looking for ideology because he makes up his own mind.
Sometimes court observers will try to track a justice's evolution of thinking.
We've had only five years.
It's not that long.
But do you see any movement in his thinking, his approach to the law over that period of time?
I think it's very consistent.
I think that he basically has deep respect for starry decisis, for precedent, for the Constitution, and for the Congress, and is loath to overturn things that Congress has done.
And of course, he expressed that during his confirmation here.
Of course he will in an obvious case, but he truly believes that the Congress, not the courts, set the national policy for this country.
Every now and then, as you know, a Supreme Court decision will include some rather offbeat humor, quoting Casey at the bat, depending.
I wonder if, given what his reputation is now for having some dry wit, we ever expect to see appear in a decision.
Well, I think we have already.
I wish I could cite the one, but it was in his first year or two.
I think it was an obscenity case, and I think that his humor was quite obvious at that time.
And he still gets off a pretty good line or two.
But to David, you know, this is pretty serious business.
I think he's a very good writer, very interesting writer.
I read all of his opinions.
I will confess I don't read all United States Supreme Court opinions, but I read all of his.
Do you have any sense, either from knowing him or even asking him directly, what his attitude is toward length of service?
No, I don't.
I would expect that David would serve certainly until normal retirement age, whatever that is.
I don't think he's in a hurry to leave the court.
I think David loves New England.
I think they'd love to see the court move to New Hampshire, but that's not going to happen.
He's not much on cities and city life, but he ⁇ I think that he finds the work demanding, but I think that he's such a modest fellow, he probably would never say this.
I'll say it for him.
I think he realizes that he's in the right place.
Would he aspire to be chief?
I don't think David has those kinds of aspirations any more than he had an aspiration to go in the U.S. Supreme Court.
I'm writing a book, and one of the chapters will deal with that whole thing, which has never really been told.
And David really was not seeking that or lusting after it.
On the contrary, he was quite happy at that point in the First Circuit.
Will your book, or at least that chapter in that book, offer us any surprises?
I think it will.
I guess we'll have to wait.
Thank you very much.
Former Senator Warren Redno.
Thank you for asking me.
It's a great subject.
justice david souter ▲ ● ▼
I think you know that I spent most of my boyhood in a small town in New Hampshire, Weya, New Hampshire.
It was a town large in geography, small in population.
The physical space, the open space between people, however, was not matched by the inner space between them because as everybody knows who has lived in a small town, there is a closeness of people in a small town which is unattainable anywhere else.
There was in that town no section or place or neighborhood that was determined by anybody's occupation or by anybody's bank balance.
Everybody knew everybody else's business, or at least thought they did.
And we were in a very true sense intimately aware of other lives.
We were aware of lives that were easy and we were aware of lives that were very hard.
Another thing that we were aware of in that place was the responsibility of people to govern themselves.
It was a responsibility that they owed to themselves and it was a responsibility that they owed and owe to their neighbors.
I first learned about that or I first learned the practicalities of that when I used to go over to the town hall in Weya, New Hampshire on town meeting day.
And I would sit in the benches in the back of the town hall after school.
And that's where I began my lessons in practical government.
As I think you know, I went to high school in Concord, New Hampshire, which is a bigger place, and I went on from there to college and to study law in Cambridge, Massachusetts and Oxford, England, which are bigger places still.
And after I'd finished law school, I came back to New Hampshire and I began the practice of law, and I think probably it's fair to say that I resumed the study of practical government.
I went to work for a for a law firm in Concord, New Hampshire, and I practiced there for several years.
I then became, as I think you know, an assistant attorney general in the criminal division of that office.
I was then lucky to be deputy attorney general to Warren Rudman, and I succeeded him as Attorney General in 1976.
The experience of government, though, did not wait until the day came that I entered public as opposed to private law practice, because although in those years of private practice I served the private clients of the firm, I also did something in those days which was very common then.
Perhaps it is less common today.
I know it is, but it was an accepted part of private practice in those days, and that was to take on a fair share of representation of clients who did not have the money to pay.
I remember very well that the first day that I ever spent by myself in a courtroom, I spent in a courtroom representing a woman whose personal life had become such a shambles that she had lost the custody of her children and she was trying to get them back.
She was not the last of such clients.
I represented clients with domestic relations problems who lived sometimes, it seemed to me, in appalling circumstances.
I can remember representing a client who was trying to pull a life together after being evicted because she couldn't pay the rent.
And although cases like that were not the cases upon which the firm paid the rent, those were not remarkable cases for lawyers in private practice in those days before governmentally funded legal services.
And they were the cases that we took at that time because taking them was the only way to make good on the supposedly open door of our courts to the people who needed to get inside and to get what courts had to offer through the justice system.
And I think it is fair to say that even I am glad it is fair to say that even today with so much governmentally funded legal service there are lawyers in private practice in our profession who are doing the same thing.
As you know, I did go on to public legal service.
And in the course of doing that, I met not only legislators and the administrators that one finds in a government, but I began to become familiar with the criminal justice system in my state and in our nation.
I met victims and sometimes I met the survivors of victims.
I met defendants.
I met that train of witnesses from the clergy to con artists who pass through our system and find themselves either willingly or unwillingly part of a search for truth and part of a search for those results that we try to sum up with the words of justice.
As you also know, after those years I became a trial judge.
And my experience with the working of government and the judicial system broadened there because I was a trial judge of general jurisdiction.
And I saw every sort and condition of the people of my state that a trial court of general jurisdiction is exposed to.
I saw litigants in international commercial litigation for millions.
And I saw children who were the unwitting victims of domestic disputes and custody fights, which somehow somehow seemed to defy any reasonable solution, however hard we worked at it.
I saw once again the denizens of the criminal justice system, and I saw domestic litigants.
I saw appellants from the juvenile justice system who were appealing their findings of delinquency.
And in fact, I had maybe one of the great experiences of my entire life in seeing week in and week out the members of the trial juries of our states who are rightly called the consciences of our communities.
And I worked with them and I learned from them, and I will never forget my days with them.
And when those days on the trial court were over, there were two experiences that I took away with me or two lessons that I had learned.
And the lessons remain with me today.
The first lesson, simple as it is, is that whatever court we are in, whatever we are doing, whether we are on a trial court or an appellate court, at the end of our task, some human being is going to be affected.
Some human life is going to be changed in some way by what we do, whether we do it as trial judges or whether we do it as appellate judges as far removed from the trial arena as it is possible to be.
The second lesson that I learned in that time is that if indeed we are going to be trial judges whose rulings will affect the lives of other people and who are going to change their lives by what we do, we had better use every power of our minds and our hearts and our beings to get those rulings right.
unidentified
Justice Souter was confirmed by the Senate 90 to 9 on October 2 and took his oath of office October 9.
Next, we talk with author and historian David Garrow about some of Justice Souter's decisions during his first five years on the Supreme Court.
During his first term, 1991, Justice Souter dissented in a case allowing a confidential source to sue a newspaper that made his name public.
In 1992, he wrote for the majority, along with Justices Kennedy and O'Connor, in Planned Parenthood of Southeastern Pennsylvania v. Casey.
That decision upheld the court's abortion ruling in Roe v. Wade, but allowed some state regulation of the procedure.
Also in 1992, Justice Souter agreed with the majority in a school prayer case, Lee v. Weissman.
The court said a prayer at a school commencement ceremony was unconstitutional.
The following year, Justice Souter dissented in Shaw v. Reno.
The majority said that bizarre-looking congressional districts are an effort to segregate voters.
Justice Souter was in the majority on a religious school case in 1994, Curios Chole v. Grumman.
The court said the establishment of a special school district for Hasidic Jewish children was unconstitutional.
In another church state case in 1995, Justice Souter disagreed with the majority, which said the University of Virginia was wrong in not funding a Christian student publication.
That case was called Rosenberger v. Rector.
Also this year, Justice Souter dissented from the court in Miller v. Johnson, which struck down majority-minority congressional districts.
Justice Souter's first year on the court, 1990-1991, was a very difficult and trying year for him, just in terms of getting up to speed in terms of federal, especially federal statutory legal issues that he hadn't been exposed to on the New Hampshire Supreme Court.
But in retrospect, his first year seems relatively modest compared to his second year, 1991-92, when he, in tandem with Justice O'Connor and Justice Kennedy, supplied the crucial votes and the crucial three-justice opinion in Planned Parenthood v. Casey,
the abortion case which quite surprisingly reaffirmed the constitutional core of Roe v. Wade.
Was there anything in his decision in that case that was surprising to any court observers or to his friends?
I think what's most surprising about Justice Souter's portion of the truly landmark three justice opinion in Casey is the way in which it so directly echoes some of his testimony at his confirmation hearings in 1990.
And the echoes are very striking, extremely similar in wording, when it comes to the question of respect for precedent, stare decisis, as people in the legal business term it.
But not just as a legal principle, but as he talked about at his confirmation hearings and as the opinion in Casey discussed in some detail, the degree to which Americans in leading their daily lives have relied upon the court's existing opinions in making personal life decisions.
And it was that aspect of Roe v. Wade as a precedent that has had personal meaning in individuals' lives that was what Souters put particular stress on in the 1992 opinion in Casey.
Expand a little bit on your reference to his confirmation hearings and what we saw then.
That's when the Senate tries to get a handle on who the person is.
And from what we saw then, how has he turned out?
I think many viewers will recall how five years ago when President Bush first nominated Justice Souter, he was viewed as a quote-unquote stealth nominee whom virtually no one in Washington knew much about.
He was thought of as this reclusive figure from the New Hampshire backwoods, some sort of 19th century figure who lived in an old farmhouse and had more books than he could fit in it.
And I think much of the coverage back after, right after his nomination, failed to capture in a very clear way that this was an exceptionally bright individual, Justice Souter,
and that in his life in New Hampshire, he had a very close, active, wonderful group of friends, and that this wasn't in any way an oddball individual.
I think if people reflect back on the confirmation hearings themselves, what came through again and again in his three days of testimony before the Senate Judiciary Committee was that this was someone with really an absolutely top-notch intellect and someone who appeared quite confident of and comfortable with his own ability to be a Supreme Court justice.
Another of the cases that you've noted in looking at his career are also from 92 is the school prayer case, Lee versus Weissman.
What did Justice Souter write then?
In Lee v. Weissman, which concerned graduation prayer ceremonies, an issue that is still with the court, there again, he, in tandem with Justice O'Connor and Justice Kennedy, took a position that many observers found surprising.
But one of the real constants in Justice Souter's first five years on the court is his particular interest in and concern for the religion clauses, both the Establishment Clause and, perhaps even a little bit more so, the free exercise clause.
A number of his most interesting opinions have been in religion clause cases.
A concurrence in a case two years ago called Church of Lakumi Babalu concerning Santeria practices in the state of Florida.
His opinion a year ago, 1994, in the Kiri S. Joel case from New York State, where Justice Scalia went after him in a somewhat personal way, and he responded with a touch of humor and amusement.
And then this past year, Rosenberger, a case concerning the University of Virginia's question of funding a student religious magazine.
And so the religion question in all of these successive cases is one of Justice Souter's most constant front-burner concerns.
A lot of articles about the court talk about the direction the court has taken over the past few years and where it's headed, where it's come from.
As people look at the court and see which way it's going, where does he fit into all this?
Is he moving with the court or where do you see him going in these stories about where the court's going?
I think Justice Souter has been quite consistent, quite constant.
As we talked about a moment ago, there have been a lot of five to four divides this past year.
And I think there's no minimizing the fact, both in terms of this past year and even with regard to three years ago in Casey and Lee v. Weissman, that numerically speaking, Justice Kennedy is usually the vote that counts.
That the suitor, Stevens Ginsburg, Breyer Forsam, has to win over either Justice Kennedy or Justice Sandra Day O'Connor to get a fifth vote.
And they, numerically speaking, have become the central figures on this court.
And their votes this past term really are the centerpiece of why the 1994-95 year for the court was so dramatically more conservative than any of the four years that went before it.
One of the earlier cases you wrote about was the voting rights case, Shaw v. Reno, what was the significance of that for Justice Souter?
Justice Souter dissented in Shaw v. Reno two years ago in 1993, and that was where a majority speaking through Justice O'Connor, for the first time signaled that the court was going to look critically and skeptically at black majority congressional districts in the South,
a subject that that same conservative majority has now gone even more energetically forward with in the recent case Miller v. Johnson from the state of Georgia concerning Cynthia McKinney's congressional district.
And it seems quite clear that at least four of those conservative justices, Justice O'Connor is the fifth vote and the question mark, intend to push forward with a very skeptical review of minority, majority congressional districts.
You mentioned earlier his friends, his old friend Singh, their old friend on the court.
A lot was written at the time of his nomination about his connections back home.
Does he still have those strong connections back there?
And what do you hear from talking to his old friends?
Yes.
I think it's crucial for people to remember, if they think back to 1990 when President Bush nominated Justice Souter, that Justice Souter's real mentor, the man who really worked hard to get him that nomination, was Senator Warren Rudman, certainly a liberal Republican by most standards, and not White House chief of staff and former New Hampshire Governor John Sununu, who's a much more conservative man.
I think some people erroneously at the time of Justice Souter's nomination thought that to some extent he was a Sununu choice.
And I think it's fair to say among most people in New Hampshire they would not put and would not five years ago have put David Souter and John Sununu in the same pigeonhole at all.
In looking to New Hampshire, we also learned that earlier this year his mother passed away.
How did you find out about that?
I happened to see a mention of it in an online reference to a small obituary that ran in the Boston Globe.
And I called a friend who, as much as anyone in the country, is on top of what's happening, what's going on inside the Supreme Court.
And I said to that friend, how come you hadn't mentioned that Justice Souter's mother had passed away?
Justice Souter was extremely close to his mother.
And this friend said to me, gee, she has.
No one within the court knew about it even six weeks later.
I think certainly, at least to some extent, that highlights what a very private man David Souter remains.
A number of his friends have said to me over the course of the past year and a half or so that one of the things that he finds most difficult about being a Supreme Court justice is now that people recognize him in public, that he can't walk across the Boston Common.
Boston's a city he deeply loves, without people acknowledging that they recognize who he is.
I think Concord, New Hampshire, he lives just outside of Concord.
Concord is a small enough town that I think people there are very respectful of his privacy.
But this is not a man who wants to be recognized on the sidewalk or in the park.
What we know about the justices is generally from their opinions.
What's your assessment of his writing?
Justice Souter has a very strong interest in history.
Justice Souter spent a lot of his spare time when he was first an attorney general in New Hampshire, then a trial court judge, reading history.
This is a man who has as extensive a command of English literature and Anglo-American history in his head as anyone that I've certainly ever met.
And in many of his opinions, the Rosenberger dissent this past term concerning the Establishment Clause issue of university funding for this religious magazine, one sees in many of his opinions the very deep historical grounding that he has.
And that's a growing theme, I believe, with this court because Justice Clarence Thomas, who in a concurrence in Rosenberger sort of took after Justice Souter, many of Justice Thomas's opinions also have a very pronounced historical interest, though often with a much more formalistic analytical emphasis than anything we see from Justice Souter's pen.
We've talked about a handful of cases.
Are there any cases that we haven't mentioned yet that you think are key to us understanding David Souter?
I think that the Casey opinion, when one looks back over this first five years for Justice Souter on the Supreme Court, that the Casey opinion really without a doubt looms the largest.
I think that many close observers in New Hampshire, people who remember some of his criminal opinions when he was on the New Hampshire Supreme Court,
have been somewhat surprised that David Souter as a Supreme Court justice has turned out to be somewhat more quote-unquote liberal on criminal procedure questions than they would have predicted five years ago in 1990.
You mentioned earlier about in opinions, the justices perhaps taking a little shot at one another.
What have you been able to assess about his relationship on a personal level with the other justices?
It's certainly my impression that he has a very good relationship even with justices such as Justice Scalia, with whom he sort of crosses ideological or analytical lances, so to speak.
I think it's fairly well known among people who watch the court carefully that ideological battle lines very often don't bleed over into personal matters.
I think most everyone views Chief Justice Rehnquist as an extremely conservative judge, but I think we all have the impression that the Chief Justice is extremely personally popular with other members of the court, including Justice Souter.
What's Justice Souter like during oral arguments?
Justice Souter is a fairly outspoken justice, was on the New Hampshire court, hasn't changed in that regard.
This is someone who is very sharp, who takes his job with considerable seriousness, works certainly as many hours a week as anyone presently on the court or perhaps on the court for some number of years now.
And Americans are more than getting their money's worth or salary's worth with David Souter.
When he's not putting in all those hours at the court, what does he do away from the court?
Justice Souter likes to run.
One of his real passionate interests for a good number of years has been hiking, not quite mountain climbing per se, but hiking up peaks in New Hampshire.
This is a man who, I think, very deeply misses New Hampshire and doesn't especially like having to be in Washington, D.C. eight or nine months a year.
I certainly have the impression that Justice Souter is someone who enjoys the internal life of the court and the court building very much, but I don't think he's ever going to be terribly enthusiastic that the Supreme Court is based in Washington.
We've spent this time looking back at the past five years.
What do you anticipate from Justice Souter in the next five?
I think that Justice Souter will continue to be one of the intellectual leaders of this court.
I think a number of people might agree with me that perhaps it's the three S's, Souter Stevens Scalia, that intellectually are the three most interesting members of this present court.
But we're not going to have a significant change in this court probably for a year or two until some member of the conservative five, perhaps Chief Justice Rehnquist, come 1997 after we have the next presidential election behind us.
Not for a few years will there be any dramatic shift on this court.
And this is not a court, as a number of legal commentators have emphasized.
This is not a court with any especially energetic agenda that the suitor Breyer Ginsburg portion of the court is going to champion.
It would certainly be my opinion that Justice Souter and some of the others as well found the events of this past term to be of fairly serious concern.
I certainly had the sense in reading his dissent in the Rosenberger case, the funding for the University Religious Magazine, that he was torn, if you will, between saying very strongly that this was a very dangerous, very regrettable precedent, and at the same time wanting to sort of keep holding out some hope that Justice O'Connor,
who oftentimes is the crucial fifth vote but rather explicitly indicates that she's not fully certain of where some of her conservative colleagues want to go, of Justice Souter holding out hope that perhaps Justice O'Connor in particular could be drawn back towards himself and Stevens and Ginsburg and Breyer.
David Garrow is an author and historian.
Thanks so much.
Thank you.
Last month, Justice David Souter swore in new citizens at a ceremony in Plymouth, Massachusetts.
We end with his remarks.
All rise, please.
All persons having anything to do before the Honorable David H. Souter, Justice of the Supreme Court of the United States, sitting by designation, and the Honorable Patty B. Saras, Judge of the United States District Court, now holding in Boston, in and for the District of Massachusetts, may draw near, give their attendance, and they shall be heard.
God save the United States of America and this honorable court.
Court is now open.
You may be seated.
justice david souter ▲ ● ▼
This is an unusual place for a judge to be in a courtroom, which technically this is, but this is an unusual occasion.
And I think it's equally unusual for a judge to thank those who are already here for his welcome.
But I certainly thank you, Mr. Gomes, and all of you, for the welcome that you have given me this afternoon.
As you know so well, we are here in this special session of the court, Judge Saris and I, for the purpose of admitting to citizenship, I was about to say, 102 new citizens, each representing one of the original passengers on the Mayflower.
But in fact, I've been informed that the number has swelled to 104, which I think, if I'm not going to get into too much trouble with my history, isn't totally out of line because I think there was one berth on the ship on the way over and another one while she was anchored off Cape Cod.
So I think maybe the extra two represent those extra two.
That, in any event, whatever the number, is our purpose.
And for that purpose, I will recognize to present motions for admission to citizenship Mrs. Myra Strauss of the United States Immigration and Naturalization Service.
unidentified
Thank you, Justice Souter.
Good afternoon.
It is my great privilege to be representing the United States Immigration and Naturalization Service at these proceedings this afternoon.
Your Honor, there are 24 applicants for naturalization present in the courtroom this afternoon who wish to change their names as part of the naturalization proceeding.
The government has investigated the reasons behind these name changes and interposes no objection.
I respectfully move that all 24 name changes be allowed.
justice david souter ▲ ● ▼
And your motion will be granted and the changes will be spread on the record of the court.
unidentified
Thank you, Your Honor.
And finally, there are 104 applicants for naturalization present here today, three of whom are children who are the beneficiaries of applications filed by their United States citizen parents.
Each applicant has been duly examined in accordance with the Immigration and Nationality Act of 1952 as amended, and each applicant has been found well qualified for United States citizenship.
Your Honor, I respectfully move that all 104 applicants be administered the oath of allegiance to the United States, thus bestowing upon them one of our nation's highest honors, United States citizenship.
justice david souter ▲ ● ▼
And your motion will be granted.
And those whose names are contained in your motion will be admitted to citizenship of the United States upon taking the oath of office, which I will now ask them to take.
Will those who are about to be admitted please rise?
I will ask you to raise your right hands and to repeat the oath after me as I read it first to you.
We will begin simply by with the word I, and I will ask each of you to state your names.
Then I will read, I promise you in short phrases, the remainder of the motion.
I hereby declare on oath that I absolutely and entirely renounce and abjure all allegiance and fidelity to any foreign prince,
potentate, state, or sovereignty of whom or of which I have heretofore been a subject or citizen,
that I will support and defend the Constitution and laws of the United States of America against all enemies.
foreign and domestic.
That I will bear true faith and allegiance to the same.
That I will bear arms on behalf of the United States when required by the law.
That I will perform non-combatant service in the armed forces of the United States when required by law,
that I will perform work of national importance under civilian direction when required by the law.
That I take this obligation freely without any mental reservation or purpose of evasion, so help me, God.
You are now citizens of the United States.
unidentified
The United States District Court for the District of Massachusetts.
Court is now adjourned.
You may be seated.
justice david souter ▲ ● ▼
We judges do not normally speak after court either, but I am going to break tradition in that respect just for a moment.
Our proceedings, our judicial proceedings have been brief today.
They would, if for no other reason, be brief because I am sitting in Governor Carver's chair, and I can assure you that they had short council meetings in those days, where Governor Carver was made of much tougher stuff than I am, at least in one place.
Now that I'm out of the chair, I will not be long either, but there is time for me to say welcome to all 104 of you who have just joined us as citizens of the United States.
I provided an outward and a visible sign of that welcome because I've seen to it that before you go away today, each of you will receive a copy of the Constitution of the United States.
And I want you to have that keepsake, not only because it is the devotion to the American Constitution which binds us together as a people, even though we come from such diverse sources,
but because that devotion also carries on the work that was begun here or quite near to here in Plymouth by those first pilgrims nearly 375 years ago.
That is so because the Constitution of the United States, like a lot of us here today, had an ancestor on the pilgrim's ship.
And the ancestor of the Constitution was that document that we know today as the Mayflower Compact.
The Mayflower Compact was made, it was put together, by the passengers of that ship when it still lay at anchor off Cape Cod across the bay from here before it finally arrived in Plymouth.
And what that compact was, was nothing more or less than an agreement by those who signed it that they would form a government with authority, as they described it, to pass just and equal laws for the general good.
And so, in a fall day in the year of 1620, those earlier pilgrims took a step in trying to find the mixture of governmental power and individual liberty that would turn out to be worthy of a people of such principle and of such courage as they were,
and as of such principle and of such courage as those who would follow after them.
And toward the end of the century that followed theirs, the framers of our present plan of national government and our Bill of Rights carried forward that work of striking a sound balance between power and freedom.
For just like the Mayflower Compact, the Constitution of the United States is an agreement.
It is an agreement among the people giving authority to make law for what is now a powerful nation, but limiting that authority by the liberty of that nation's people.
Today, our common task as citizens is to see that the national agreement is kept.
And we may only do this by demanding that our public officials, like me, take very great care to see that the balance between authority and liberty that was meant for our inheritance is in fact the inheritance of every one of us.
It is quite true that we do not all agree on exactly where that balance between authority and liberty lies.
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