On the News of Justice David Souter’s Retirement

[WSJ Law Blog]

For those of you who haven’t checked just about any news Web site since last evening — and otherwise don’t have the names of all nine Supreme Court justices plugged into Google Alerts — let us gladly be the ones who bring you the news: Supreme Court Justice David Souter plans to retire from the Supreme Court. Here are reports from the WSJ, NYT, and WaPo.

We’ll have more on the news over the course of the day, for now, let’s hit the high-level points and give you a few more links to check out.

Why now? To court watchers, it’s been one of Washington’s best-kept secrets: that the 69 year-old jurist had over the years grown increasingly disenchanted with life in Washington and reportedly longed to return to his home state, New Hampshire. Souter had reportedly sussed out whether two other members of the more liberal wing of the court — Justice John Paul Stevens and Justice Ruth Ginsburg — had plans to retire in the next year, and feeling confident enough both in Justice Stevens’s desire to stick around for another year and in Justice Ginsburg’s health prognosis, felt that the time was now.

According to the WaPo, a friend who ran into him last summer in Concord said he was surprised by just how strongly Souter spoke about wanting to leave Washington. “He said, ‘If Obama wins, I’ll be the first one to retire.’”

Adds Tom Goldstein on Scotusblog: “Justice Souter’s sense of self has never seemed bound up in his status. It is likely that once it became clear that Justice Ginsburg would fully recover and serve for many years more, this seemed like an appropriate time to retire from the Court.”

When the court is not in session, Souter lives in Weare, a small town west of Concord where he has a modest 200-year-old farmhouse on eight acres.

What’s his legacy? Well, far be it from us to weigh in on such a question mere hours after the news breaks. But we can tell you this: Nearly from the day he was sworn onto the court, back in 1990, the George H.W. Bush-appointed Justice Souter was a disappointment to conservatives who supported his nomination and a surprising boon to liberals. Throughout his tenure — first with the Rehnquist court and more recently with the Roberts court — Justice Souter regularly voted with the liberal bloc (which was often also the minority bloc). Dating to President Clinton’s first term, that group consisted mostly of Justices Stephen Breyer, Ruth Bader Ginsburg, John Paul Stevens and Souter.

Justice Souter cast what appeared to many to be a surprising vote in a 1992 abortion case, Planned Parenthood v. Casey, in which it was widely expected that the 1973 landmark case upholding abortion rights, Roe v. Wade, would be either partly or wholly overturned. But owing in part to Justice Souter’s vote, Roe was largely upheld. In the fractious 2000 opinion Bush v. Gore, which essentially settled that year’s presidential election by ending the ballot recount in Florida, Souter voted with the minority.

For a quick synopsis of some of the larger cases in which Justice Souter played a significant role, check out Goldstein’s excellent post. He writes:

So far, [Souter] has written 156 majority opinions for the Court. There isn’t the space here – or the time for reflection – to catalog them in order of importance or interest. But in constitutional law, his opinion for five Justices in McCreary County v. ACLU, 545 U.S. 844 (2005), stands at the knife’s edge of stating a controlling rule of law in Establishment Clause cases that may not survive the departure of Sandra Day O’Connor. His opinion in the right of speech and association in Hurley v. Irish-American, Lesbian & Bisexual Group of Boston, 515 U.S. 557 (1995), is among the most often cited in the field. For a time, he was a member of a majority to more broadly uphold campaign finance regulation, as reflected in his opinions in FEC v. Beaumont, 539 U.S. 146 (2003), FEC v. Colorado Republican Fed. Campaign Comm., 533 U.S. 431 (2001), and Nixon v. Shrink Mo. Gov’t PAC, 528 U.S. 377 (1999). For a man with a somewhat distant relationship with technology, his opinion in MGM Studios v. Grokster, 545 U.S. 913 (2005), is surpassingly important to the future of copyright, and opinions like Verizon Comms. v. FCC, 535 U.S. 467 (2002), play a central role in telecommunications regulation. Others decided critical questions of procedure. The defense bar hopes that Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), is a landmark ruling on the obligation to set forth detailed allegations in a complaint.

What happens next? With 59 supporters in the Senate, President Obama will likely have wide latitude in choosing Souter’s replacement. Since last November’s election, a consensus has grown that Obama will feel pressure to add a second woman to the court. Some names that will likely be on a short list include Second Circuit judge Sonia Sotomayor, Elena Kagan, the former dean of the Harvard Law school and nominee to become President Obama’s first solicitor genreral, Seventh Circuit judge Diana Pamela Wood, former Stanford Law dean Kathleen Sullivan, Leah Ward Sears, the chief justice of the Georgia Supreme Court, and Michigan Governor Jennifer Granholm.

For more on possible replacements, click here for Goldstein’s take.