Welcome back, Deadline: Legal Newsletter readers. Ever wonder how we got to this extreme point in American life? Some of it has to do with David Souter. More specifically, it has to do with the fact that the late Supreme Court justice was a reasonable man. He was nominated by a Republican president in 1990 but eschewed the partisan push to overturn abortion rights and accomplish other GOP priorities from the bench. The retired justice’s death on Thursday thus highlights today’s radically different court — and country.
“No More Souters” was the Republican rallying cry against the George H.W. Bush appointee’s moderate streak. If the party were to accomplish its goal of overturning Roe v. Wade, it could no longer afford to nominate squishy jurists. That quest for Supreme Court domination helped put Donald Trump in the White House for his first term, where the three justices he appointed helped make a majority in the Dobbs case.
The Dobbs dissenters lauded Souter as a judge “of wisdom.” They noted that he and fellow GOP appointees Sandra Day O’Connor and Anthony Kennedy had previously declined to overturn Roe. “They would not have won any contests for the kind of ideological purity some court watchers want Justices to deliver,” Justices Stephen Breyer, Sonia Sotomayor and Elena Kagan wrote in that rare joint dissent in 2022. “But if there were awards for Justices who left this Court better than they found it? And who for that reason left this country better? And the rule of law stronger? Sign those Justices up.”
Sotomayor replaced Souter, another sign of how different things are today. He retired in 2009, when Barack Obama was president. That cleared the way for the Democrat to put his stamp on the court. It’s unthinkable today for a justice to willingly depart their powerful seat when the opposing party is in control. Kennedy didn’t do that; he stepped down under Trump so Trump could nominate Brett Kavanaugh. That’s a legacy of the “No More Souters” ethos.
Trump’s presidency and all it has wrought are a legacy of that ethos, too. Republicans who might’ve otherwise hesitated to back him in 2016 had their eye on the high court prize. They got it, and the country got that and more: The Jan. 6 insurrection; the attempts to crush dissent; the gutting of the federal government; the lawless renditions to El Salvador; the profiting off the presidency while toying with the economy. Without the GOP’s fear of a wobbly justice on abortion, there’d be no Ed Martin running the U.S. attorney’s office in D.C., and no Jeanine Pirro in his place when even he was deemed too extreme for the party of Dobbs — and even then, just barely so. The list goes on.
The court that the GOP built with Trump let the president start enforcing his transgender military ban this week. It did so on a straight party-line vote, a description that wouldn’t have been possible in Souter’s time, when the justices didn’t strictly align with the presidents who nominated them. Next Thursday, the court will hold a rare hearing stemming from Trump’s attempt to curb birthright citizenship — a move that judges around the country have deemed unlawful. Technically, the appeal isn’t about whether Trump’s underlying move was legal, but whether judges can block it nationwide. Yet, the court chose this issue as a platform to scrutinize nationwide injunctions. I’ll report back next week on where the Souter-less court seems headed on this issue. Have any questions or comments for me? Please submit them on this form for a chance to be featured in the Deadline: Legal blog and newsletter.
Jordan Rubin is the Deadline: Legal Blog writer. He was a prosecutor for the New York County District Attorney’s Office in Manhattan and is the author of “Bizarro," a book about the secret war on synthetic drugs. Before he joined MS NOW, he was a legal reporter for Bloomberg Law.
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