Exiting justice had dry wit, avoided D.C. social whirl

WASHINGTON -- In 1990, when David Souter was nominated for the Supreme Court and visited Capitol Hill, one of the reporters trailing him asked the little-known New Hampshire judge how it felt to be snatched from obscurity.

"I must say," he responded, "I never thought of myself as that obscure."

The dry-witted Yankee has remained a low-key but crucial player on the nation's highest court. He told President Obama on Friday that he will retire when the court term ends this summer.

Souter, an appointee of George H.W. Bush, became a reliable member of the court's liberal wing, voting to uphold abortion rights, urging a high wall of separation between church and state, and consistently endorsing legal protections for Guantanamo detainees.

Yet Souter, 69 and a lifelong bachelor, was never comfortable in the world of Washington and rarely accepted speaking invitations. He preferred to eat a quiet lunch at his desk than to socialize with his colleagues. He has been decidedly old-fashioned, writing his opinions out in longhand rather than on a personal computer, and often works in dimly lit chambers. He once declared to a congressional committee that cameras would be allowed in court only over his "dead body."

University of Pennsylvania law professor Kermit Roosevelt, who was a law clerk to Souter from 1999-2000, said the justice's interest in ideas and history makes him an expert on U.S. law but also causes him to chafe at the ways of Washington.

"I think he has a better understanding than most of the justices (about) how the law evolved and how it adapts to the needs of society," Roosevelt said in an interview. "One of the things people don't understand about Justice Souter is how curious he is. He definitely wanted to learn about the world, but he didn't want to do that through meeting people at formal occasions. … He doesn't like the ceremonial aspects of the job."

Souter said recently that one of his great disappointments in court work is that he can not engage in his usual reading for enjoyment. When the term starts each October, he said in a March speech, "I undergo an annual intellectual lobotomy."

The first president Bush chose Souter in 1990 to succeed the retiring William Brennan in part at the urging of then-New Hampshire Republican Senator Warren Rudman and Bush Chief of Staff John Sununu, a former New Hampshire governor. Sununu predicted Souter would be a "a home run" for conservatives.

Souter, who had served as New Hampshire attorney general and a state court judge, became a consistent vote for liberals instead. His voting record was not unlike his predecessor Brennan, a champion of liberalism, whom Souter befriended after Brennan retired. (Brennan died in 1997.)

After Barack Obama won the presidential election in November, Souter, along with some of the elder liberal justices, was the subject of stories in USA TODAY and other news organizations about a possible retirement. He was the one justice who had not hired law clerks for next term, which begins in October.

Souter was a key vote in a 5-4 ruling in 1992, Planned Parenthood of Southeastern Pennsylvania v. Casey, which upheld abortion rights. He voted twice, in 2000 and 2007, to strike down bans on a mid-term abortion method that critics call "partial birth" abortion.

When the justices by a 5-4 vote in Bush v. Gore stopped ballot recounts in Florida and ensued George W. Bush's victory over then-Vice President Al Gore, Souter wrote a caustic dissent about the majority's intervention in a state matter.

"If this court had allowed the state to follow the course (of past cases), it is entirely possible that there would ultimately have been no issue requiring our review, and political tension could have worked itself out in Congress," he wrote. After the decision was announced on Dec. 12, 2000, Souter left the court looking ashen and it seemed the ordeal of Bush v. Gore disheartened him even more about the political ways of Washington.

He was a vigorous voice in favor of the separation of church and state. In 2005, he wrote the 5-4 court opinion striking down the posting of the 10 Commandments in two Kentucky courthouses. He wrote that the Constitution requires "the government to stay neutral on religious belief, which is reserved for the conscience of the individual."

He voted, in the dissent, against government programs that would allow public money for school "choice" programs that helped parents pay for religious schools.

Like his predecessor Brennan, Souter was a consistent vote against the death penalty. In a 2006 case, he wrote a powerful dissent when the majority upheld a law requiring the death sentence for a convicted murderer if jurors found that the aggravating circumstances of the crime, such as its brutality, equaled the mitigating factors, such as the defendant's troubled background.

Souter called the law "morally absurd" and also stressed that advances in DNA should prompt the court to be wary about state capital sentencing policies.

Souter, joined by other liberals and swing vote justice Anthony Kennedy, also voted to allow Guantanamo detainees to get a hearing in regular federal court rather than be subject only to executive branch screening.

Yet Souter's votes were not always predictable. In 2001, he wrote the opinion for a divided court that said drivers stopped for a minor traffic offense, such as not using seatbelts or driving with expired plates, could be subjected to a full-scale police arrest including handcuffs, booking and jail.

In that case, Souter said Fourth Amendment protection against unreasonable police seizures did not cover a Texas mother who was on her way home from a soccer game with her young children when she was ordered out of her pickup for not using seatbelts. Justice Sandra Day O'Connor, the court's swing vote until she retired in 2006, wrote a blistering dissent, saying the "rule that the court creates has potentially serious consequences for the everyday lives of Americans."

Yet, by and large Souter, a former Rhodes scholar with a Harvard law degree, was a reliable vote for the liberal camp. He drew strong praise from liberal advocates, such as Nan Aron with the Alliance for Justice. The mantra from conservative advocates, such as religious broadcaster Pat Robertson, during Republican presidents' tenure was "no more Souters."