Justice Souter Emerges
By David J. Garrow

NO PUBLIC DOCUMENT—AND PROBABLY only a single very private one—marks April 23, 1992, as one of the more momentous days in recent #SupremeCourt history. Nothing of apparent note transpired at the Court that Thursday; oral arguments had taken place the day before and the Justices' weekly private conference, where they vote on cases, would not begin until Friday morning.

#DavidSouter #SCOTUS #law #judiciary #JudicialIndependence
https://www.nytimes.com/1994/09/25/magazine/justice-souter-emerges.html?unlocked_article_code=1.F08.Zas6.kovKqFwo_Hqh&smid=nytcore-ios-share&referringSource=articleShare

On Wednesday, during oral argument of the case, Planned Parenthood of Southeastern Pennsylvania v. Casey, he had listened intently from his seat on the bench as Planned Parenthood's attorney, Kathryn Kolbert, began her argument:

"Whether our #Constitution endows #government with the #power to force a #woman to continue or to end a pregnancy against her will is the central question in this case.

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

"Since this Court's decision in #RoeVWade, a generation of American #women have come of age secure in the knowledge that the #Constitution provides the highest level of protection for their childbearing decisions.

"This landmark decision, which necessarily & logically flows from a century of this Court's #jurisprudence, not only protects rights of bodily #integrity & #autonomy but has enabled millions of women to participate fully & #equally in society."

#DavidSouter #SCOTUS #law #judiciary

But now #Roe's survival was very much in doubt, as was starkly revealed by the Pennsylvania anti-#abortion regulations under review in Casey. 3 years earlier, Chief Justice William Rehnquist & Justices Byron White, Antonin Scalia & Anthony Kennedy had signaled their desire to overrule Roe at the first available opportunity, & few observers doubted that the Court's newest & most controversial member, #ClarenceThomas, was eager to join them as the fifth & decisive vote.

#DavidSouter #SCOTUS #law

…Only as Preate's time was about to expire did the 52-year-old #DavidSouter speak up to ask Preate a statistical question about the Pennsylvania provision that would require married women facing unwanted pregnancies to notify their husbands, even if they were separated or estranged, before seeking an #abortion. Then, after #UnitedStates Solicitor General Kenneth W. Starr, representing the anti-abortion views of the Bush Admin, succeeded Preate to second the attack on #Roe,

#SCOTUS #law

#DavidSouter pressed Starr to concede that if his position prevailed, states could #outlaw all #abortions except perhaps those where a pregnancy directly threatened a #woman's life.

None of Souter's comments had telegraphed a clear position on either Casey or Roe.
…
Not for many years will any outsiders likely see any notes that may have been taken that following Friday morning when the Justices met to vote on Planned Parenthood v. Casey.

#SCOTUS #law #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

Well before Rehnquist's opinion was circulated to other Justices in late May, Kennedy privately joined #DavidSouter & O'Connor in preparing an extensive separate statement. Sometimes all 3 Justices, sitting on the couch in Souter's office, would jointly review their progress, & their cooperation led to a stunningly unexpected result: Rather than Rehnquist & Scalia having 5 votes to void #Roe, there were 5 votes -- Souter, O'Connor & Kennedy, plus Blackmun & Stevens, to uphold Roe.

#SCOTUS #law

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

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

"The essential holding of #RoeVWade should be retained & once again affirmed," they wrote in language that also spoke for Blackmun & Stevens.

"Roe's essential holding, the holding we reaffirm, has 3 parts. First is a recognition of the right of the #woman to choose to have an #abortion before viability & to obtain it without undue interference from the State.…

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

“Second is a confirmation of the State's power to restrict #abortions after fetal viability, if the #law contains exceptions for pregnancies which endanger a woman's life or health. And third is the principle that the State has legitimate interests from the outset of the pregnancy in protecting the #health of the #woman & the life of the fetus that may become a child. These principles do not contradict one another; & we adhere to each."

#DavidSouter #SCOTUS #law #judiciary #Independence #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

The most eloquent section of the opinion was the discussion of #Roe & the principle of #StareDecisis — Latin for #judicial respect of existing #precedent — that had been crafted principally by #DavidSouter. Souter's words in Casey spoke not only for the Court, but also for the essence of America's judicial heritage & for the very core of Souter's own judicial background.

#SCOTUS #law #judiciary #Independence #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

"For two decades of economic & social developments, people have organized intimate relationships & made choices that define their views of themselves & their places in society, in reliance on the availability of #abortion in the event that contraception should fail. The ability of #women to participate #equally in the economic & social life of the Nation has been facilitated by their ability to control their #reproductive lives,” #DavidSouter wrote.

#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

“It is the dimension present whenever the Court's interpretation of the #Constitution calls the contending sides of a national controversy to end their national division by accepting a common mandate rooted in the Constitution.

"The Court is not asked to do this very often, having thus addressed the Nation only twice in our lifetime, in the decisions of #Brown & #Roe.

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

“But when the Court does act in this way, its decision requires an equally rare precedential force to counter the inevitable efforts to overturn it & to thwart its implementation. Some of those efforts may be mere #unprincipled emotional reactions; others may proceed from principles worthy of profound respect.

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

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

[another noteworthy section is on Souter’s confirmation hearings]

When the Senate #Judiciary Cmte hearing began…Senators & reporters quickly realized that Souter was an impressively erudite nominee.…Amid all the concepts & issues he was asked to address, 2…stand out as most revealing: #liberty & #precedent. …Specifically, Souter stressed that in the #DueProcess clause language of the #5thAmendment & #14thAmendment, "the concept of liberty IS NOT LIMITED BY THE SPECIFIC SUBJECTS.”

#DavidSouter