Souter’s Leftward Turn Changed Future Supreme Court Nominations

Former Justice David Souter’s perceived turn to the “left” changed the future of Supreme Court nominations, with conservatives vowing to appoint “no more Souters.”

Souter, who died Thursday at 85, was known as the “stealth nominee” when he was nominated by President George H.W. Bush in 1990 because of his lack of a public record on controversial issues.

But the New England native soon disappointed conservatives when he voted to uphold abortion rights in Planned Parenthood v. Casey in 1992. Going forward, Republicans swore to only nominate rock-ribbed conservatives with the record to back it up.

“Justice Souter’s turn to the left fanned the flames of the fire set by the liberal takedown of Robert Bork’s nomination to the Supreme Court and really focused the conservative legal movement on the vetting process for future Supreme Court nominees,” Robert Luther III, a White House lawyer during Donald Trump’s first term who handled judicial nominations, said in an email.

The approach has so far been successful. The current 6-3 court is stacked with committed conservatives who’ve largely delivered on GOP priorities.

Progressive Pushback

Progressives initially opposed Souter’s nomination. The biggest concern was Roe v. Wade, said Chad Oldfather, a constitutional law professor at Marquette University, “and the thought at the time was that Souter would provide the fifth vote for its overruling.”

Souter won confirmation 90-9, with “the most progressive members of the Senate,” including Edward Kennedy (D-Mass.) accounting for the nine no votes, said Jeremy B. Rosen, former president of the Los Angeles Lawyer’s Division of the Federalist Society.

But in the end, their votes produced a justice “more in tune with their core concerns than those of many who voted yes on his nomination,” Rosen said.

Souter went on to join Justices Anthony Kennedy, Sandra Day O’Connor, and the court’s Democratic-appointed wing in Planned Parenthood v. Casey in upholding Roe.

This subsequent betrayal in the eyes of conservatives made way for the mantra “No More Souters,” and efforts by Republican administrations to vet potential nominees more rigorously moving forward. They sought out nominees familiar in Federalist Society circles and with track records of service in Republican administrations and conservative rulings as appellate judges.

In 2005, conservatives balked when President George W. Bush nominated a little known Texas lawyer Harriet Miers and ultimately forced him to withdraw her nomination in favor of Samuel Alito.

The emphasis on reliable conservatives reached its apogee during the first term of President Donald Trump.

“You could draw a straight line from that disappointment to candidate Donald Trump’s campaign ploy of promising to nominate Supreme Court justices from a list prepared by Heritage Foundation and Federalist Society,” Jeremy Rabkin, a George Mason University law professor, said in an email.

His three nominees — Justices Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett — along with Justices Clarence Thomas and Alito, formed the conservative supermajority that finally overruled Roe in 2022.

Lasting Scars

Still, even 16 years after his retirement, the specter of Souter continues to haunt conservatives, who’ve now turned their ire on Barrett.

Despite her votes to undo Roe and affirmative action, strengthen religious rights, and dismantle the “administrative state,” Barrett’s recent rulings against the Trump administration have prompted harsh criticism from the right.

Barrett ruled in March against the administration in its attempt to halt funding for USAID. And she partially joined her liberal colleagues last month in dissenting from the court’s ruling on Trump’s deportation of alleged Venezuelan gang members.

“Barrett deceived people into thinking she was a reliable constitutionalist,” conservative talk show host Mark Levin said on social media following her ruling in the USAID case. “It happens with frightening regularity the last half century.”