An unsung hero of our Supreme Court

Retired justice David Souter, who turned 83 a few days ago, exemplifies the kind of humility and grace that receives scant attention in our celebrity-driven, 24/7 news-cycle world.

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Supreme Court Justice Sonia Sotomayor (left) walks with retired justice David Souter (center) after the funeral service for the late Justice Antonin Scalia in 2016.

Nicholas Kamm/AFP via Getty Images

Today the word “hero” is grossly overused. We are inundated with hagiography and hype. Some of these “heroes” are remarkable. Many are overrated.

But are there overlooked heroes? Certainly. And my first choice in this category would be Justice David H. Souter, who served on the Supreme Court from 1990 to 2009.

No one has proposed him for sainthood. No one has a bobble-head of Justice Souter. No one cloyingly refers to him as “DHS.” But Justice Souter exemplifies the kind of humility and grace that receives scant attention in our celebrity-driven, 24/7 news-cycle world.

He began his Supreme Court service unremarkably. He was a New Hampshire Republican who had served the state both as Attorney General and as a member of the state Supreme Court. President George H. W. Bush appointed him to the U. S. Court of Appeals for the First Circuit in May, 1990. A scant four months later, Bush appointed him to fill the seat of the retiring Justice William J. Brennan, Jr.

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This quick ascent created a good deal of suspicion. Just three years before, an extensive paper trail had led to the rejection of Robert Bork’s Supreme Court appointment. Souter appeared to be the antithesis. His lack of a paper trail led critics to refer to him as “the stealth candidate.” This, coupled with his almost-too-meteoric rise, led some to believe that under his bland exterior, he was another Justice Antonin Scalia waiting to blossom.

We quickly learned otherwise. Less than two years into the job, he faced the landmark case of Planned Parenthood v. Casey. This was seen as the case that would finally overrule Roe v. Wade. Eight of the nine sitting justices had been appointed by Republican presidents. All the pieces were in place.

But Roe survived (at least until this year). It survived in 1992 because three justices issued a jointly signed opinion that limited Roe, but refused to overrule its essential holding. It included a ringing endorsement of the concept of “stare decisis,” the policy that courts should overrule cases only under exceptional circumstances.

Two of the justices who signed the opinion were Sandra Day O’Connor and Anthony Kennedy. The third was the recently-appointed David Souter. By refusing to go along with fellow Republicans William Rehnquist, Antonin Scalia, and Clarence Thomas, he clearly showed that his vote could not be taken for granted.

And this refusal to be ideologically pigeon-holed continued during Souter’s entire tenure on the Court. If anything, as the years went by, he tended to vote more with the liberal wing.

When Barack Obama was elected president, many assumed that Democratic appointees Stephen Breyer and Ruth Bader Ginsburg would retire to make way for young liberal justices who could continue their legacies for decades. It never happened.

But one of the justices who did retire to allow Obama to name his replacement was David Souter. He left the Court at 69, just months into Obama’s tenure. The result of his decision was the appointment of Justice Sonia Sotomayor. Souter then quietly moved back to his home in New Hampshire.

David Souter does not make the rounds of talk shows or cable news stations. Like Cincinnatus, he did his duty and then retired to rural life. But his unselfish decision to leave the court when he did means his legacy will live on through the work of Justice Sotomayor.

On Sept. 17, Justice Souter turned 83. Sept. 17 also happens to be Constitution Day.

The two events are not unrelated.

Timothy P. O’Neill is Emeritus Professor at the University of Illinois Chicago School of Law

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