0:00

This week on The New Yorker Radio Hour, I'm

0:02

going to speak with Robert F. Kennedy Jr., the

0:04

anti-vaccine activist who's challenging

0:07

Joe Biden in the primaries. That's on The

0:09

New Yorker Radio Hour. Listen

0:11

wherever you get your podcasts.

0:31

So... where

0:33

do we start? Why don't you tell

0:36

me who you are and what you do? Okay,

0:39

so my name is Ashley Lopez, and

0:41

I'm a political correspondent for

0:43

NPR. But you are here today...

0:46

Yeah. ...because of

0:48

your... Do we want to call it an obsession?

0:51

You know what? I guess

0:53

obsession is maybe a little bit too

0:55

much. Okay, I'm sorry. I'm

0:57

sorry. It's not far. I've just

0:59

been very intrigued for many years by

1:03

David Souter.

1:03

Justice David Souter has informed

1:05

the White House he will retire at the end of a Supreme

1:08

Court term in June. Justice David

1:10

Souter retired

1:11

in 2009 when

1:14

Barack Obama was president. First,

1:16

I thought he was interesting because he

1:18

was appointed by a Republican and

1:20

was ceding his seat to a Democratic president.

1:23

Like, that's

1:24

kind of a weird thing. Either you die in the seat

1:27

or you hand it over to the party that put you into

1:29

the seat. Souter is perhaps best known

1:32

as one of the most surprising justices to

1:34

hold the office. But the thing

1:36

that stuck out to me was just, like, how everyone talked

1:38

about David Souter. The reclusive justice stayed

1:40

hidden. He was notoriously camera shy. David

1:43

Souter speaks in public rarely now.

1:44

The shy, reclusive bachelor from

1:47

the other side of the country in New Hampshire.

1:50

Souter is unusual for a Supreme Court justice.

1:52

And not just because he went rogue and left his seat

1:55

to a Democrat. He was world-famous

1:57

for his hard work. one

2:00

of the most mysterious figures to

2:02

ever sit on the Supreme Court. He

2:04

hardly ever gave interviews, and

2:07

he was rarely seen in public, which

2:10

kind of turned this skinny,

2:12

bookish judge into the Beyonce

2:15

of the

2:15

Supreme Court. Journalists

2:18

like Ashley have scoured the internet

2:21

for clues of who this elusive

2:23

justice might be. One

2:26

of my favorite details is that he would eat yogurt

2:29

and an apple to its core every

2:31

day. He would eat the core of an apple, which I'm just like,

2:34

that's behavior I have never witnessed

2:36

before. Definitely

2:39

seems like a nerd. Not a man about

2:41

town, he liked to be with his books

2:43

in a kind of modest house for being a

2:46

Supreme Court justice. Apparently he had

2:48

to move out eventually, and he told his neighbors

2:50

because it couldn't support the weight of his books. Also

2:54

kind of a Luddite. The only

2:56

technology he used was a telephone, and

2:58

he wrote only with fountain pens, and

3:01

he would only write in longhand. And

3:03

maybe a recluse? One of my

3:05

favorite stories actually is that he actually

3:08

had a good date. He was set up by someone, and

3:11

at the end of the date, turns to this woman and is like,

3:14

this was fun. Let's do this again in a year.

3:21

I heard through the grapevine that

3:23

a coworker of mine caught a glimpse

3:26

of him out in the wild in 2011.

3:29

I was on an interstate

3:33

in New Hampshire. In a sale,

3:35

host of WNYC's Death, Sex, and Money

3:38

had just run out of gas and

3:40

was stranded on the side of the road.

3:43

Others were just speeding by, speeding,

3:45

speeding, and we were just beginning to be like,

3:48

wait, how are we going to get

3:51

unstuck here? And then

3:53

this Volkswagen sedan

3:56

with a hubcap missing pulled

3:58

over. And this

4:01

older gentleman got out, and he was wearing

4:03

like a sports coat, came over,

4:05

asked if we needed help.

4:07

This man went and drove down the highway

4:10

to get Anna a gas can. And

4:13

told us to keep the gas can, with kind of

4:15

a laugh, like maybe we would need it. Like,

4:19

showing this was in fact all

4:21

our own faults. And so we're just like

4:23

in that like, oh my gosh, thank you so

4:25

much. And

4:27

he looks at us and he just says, I'm

4:29

David Souter. And

4:31

I yell at him, I

4:33

go, David Souter? Like,

4:37

I had no idea what David Souter looked like, but I

4:39

knew the name and I shouted it back at

4:41

him. So you maintained

4:43

no chill about it. Oh, I was ridiculous.

4:46

And he just kind of had this slight smile

4:49

and turned and walked away.

4:54

Oh yay, oh yay, oh

4:57

yay.

4:58

This week on More Perfect, we

5:00

try to finally pin down Justice

5:03

David Souter. Who from the moment

5:05

he entered the public eye, has been

5:07

a puzzle to our highly politicized

5:10

country. People on all sides wonder, you

5:12

know, who is David Souter? And in

5:14

the moments he did reveal who he was, he

5:17

made some very powerful people

5:19

very unhappy.

5:21

I really feel betrayed by

5:23

David Souter. The slogan, the mantra

5:25

within the Republican Party was no more suitors.

5:27

No more suitors. Which was the rally.

5:29

Of course, the Republican Party. The effect was that

5:31

when David Souter finally left the building,

5:35

the Supreme Court never looked

5:37

the same. David Souter and like

5:39

who he was on the court, is what sort

5:42

of set off a chain of events that led us to

5:45

the court we have today. Like

5:47

I don't think you could talk about the court and

5:49

what it is without talking about David Souter. I

5:51

believe the United States had this honor which call

5:53

out to court. Oh

6:00

yeah, yeah, yeah, yeah, yeah,

6:02

yeah, oh yeah.

6:19

More Perfect listeners. Hey. Hello,

6:21

More Perfect. We wanna answer your

6:24

questions about the Supreme Court. How

6:26

do other countries' Supreme Courts

6:28

work? What's been nagging you? Who is

6:30

this Supreme Court marshal? What

6:33

makes no sense? How come Supreme

6:35

Court justices are never ending until

6:37

they die? We might just find an answer

6:40

for you. Thank you for taking my question.

6:42

Record your question at moreperfectpodcast.org.

6:49

From WNYC Studios, this

6:52

is More Perfect. I'm Julia Longoria.

6:54

Today, a story

6:57

of how one man shaped

6:59

the Supreme Court we have today. Who

7:02

is the elusive Justice

7:05

David Souter? Hello?

7:10

Hi, is this Tinsley? This is he.

7:12

This is Tinsley E. Yarbrough,

7:15

former political science professor at East

7:17

Carolina University. I'm now

7:20

long retired. I spend

7:22

most of my time just piddling. But

7:26

I must say I haven't done anything productive

7:29

in a scholarly way in a lot

7:31

of years.

7:32

We brought him out of retirement because

7:34

back in the day, Tinsley was a

7:37

prolific Supreme Court biographer.

7:39

Biographies of the Second Harlan,

7:42

Hugo Black, Justice Harry Blackmun.

7:44

Also, author of the only

7:47

biography we could find on Justice

7:49

David Souter. He says

7:52

he began writing that book the way he

7:54

always begins. I began

7:56

contacting his former clerks.

8:00

Law clerks know a lot about a justice.

8:02

They work closely together researching cases

8:05

and writing decisions. After a

8:07

couple of weeks, I started

8:09

getting these emails

8:12

saying that on further reflection,

8:15

we think it would be best not to talk.

8:18

This kind of response was a first

8:21

for Tinsley. And then I found

8:24

out that Justice Souter

8:26

had asked them not to interview.

8:30

He did not want a biography

8:32

to be written about him, and he wanted

8:36

them not to cooperate, and

8:38

the clerks, of course, did not.

8:41

We sent many emails to clerks,

8:44

had many background calls, and

8:47

one clerk did agree to talk

8:49

to us. You're kind of known

8:51

as the Justice Souter Whisperer.

8:54

Do you identify as that? No,

8:57

but I do identify as

9:00

one of his early law clerks.

9:02

Heather Gerken, Dean of Yale

9:04

Law School, was one of Souter's most

9:07

trusted clerks. She showed

9:09

producer Gabrielle Burbé a photo of

9:11

her time working in the Supreme Court building.

9:14

We were a very, very close group of clerks.

9:17

And so... Wait, what do you guys do? I

9:19

can't explain what is happening with this photo. Stuart

9:21

said, one of my co-clerks said, oh, we

9:24

should do a photo with a pyramid. A pyramid,

9:27

like a cheerleading pyramid, where they climbed

9:29

up on top of each other.

9:31

And why? We thought this was a good

9:33

idea in the middle of the day in one

9:35

of the courtyards inside the court, one of

9:37

the most dignified institutions around. It just shows the

9:39

complete lack of judgment on our part. And

9:42

then we looked up and there was the Justice. And

9:44

each one of us was ready at that moment

9:47

to hand in our resignation because

9:49

it was ridiculous. And

9:52

instead, he very sweetly said, what this pyramid

9:54

needs is a top.

9:56

Yeah, so he's at the top and he

9:58

just has this big white... My back's on

10:00

the relief.

10:02

Exactly. Justice

10:05

David Souter did not respond

10:07

to our repeated requests for an interview.

10:10

Shocker, I know. Sitting

10:13

across from Heather was the closest we came

10:15

to meeting him. And after Heather

10:17

spoke to us, other clerks followed.

10:20

When we first laid eyes on him, I wouldn't say that he made

10:22

a really strong impression on me. Former

10:26

Souter clerk Kermit Roosevelt III

10:29

says Souter was very different from other

10:31

justices he interviewed with who did

10:33

make an impression. I was

10:35

like, these Supreme Court justices are strange

10:37

people. Rehnquist, for instance, was

10:40

kind of a performer. Rehnquist started

10:42

reciting this poem by Arthur

10:44

Henry Hallam, and I had memorized

10:46

it as part of my preparation. So I

10:49

sort of chimed in appreciatively. So

10:51

he started reciting a poem and then you were joining

10:54

in like a... Yes. I

10:56

joined in,

10:57

which was a mistake because

11:00

I think it made me look weird and over-prepared.

11:03

And definitely

11:06

all of them came across with

11:08

sort of a stronger personality. Souter

11:11

was more understated, say the clerks.

11:15

He always wears a three-piece suit. Deeply

11:18

ethical, deeply kind. But

11:21

firm. Unlike many other

11:24

Supreme Court justices, Justice

11:26

Souter wrote most of the words of his

11:28

own opinions himself. The

11:30

justice would edit it so

11:33

heavily and so fiercely that

11:35

sometimes we would look back and say, well,

11:37

he left an and, and a semicolon

11:40

in the draft.

11:41

But that's a

11:43

real judge, though, right?

11:46

I asked the clerks about some of the rumors I'd heard.

11:50

They had to reinforce the house

11:52

to hold all his books. This is

11:55

Judge Peter Rubin, another Souter clerk. Is that

11:57

true? That's a true story, yeah. That's

12:00

true. The thing about him eating an apple

12:02

to its core? That is true. And

12:05

we as clerks actually tried to get him to stop

12:07

doing that. Really? We said, Justice,

12:09

Justice, don't eat the apple cores. They're

12:11

bad for you.

12:12

And he was a bit of a technophobe. I

12:15

walked into his chambers and the room was completely

12:17

dark. And Justice Souter was standing by the

12:20

window reading in the

12:22

light

12:22

that was coming through the window. Like

12:25

from the moon or something? Well, yeah,

12:27

because he didn't want to use the electricity

12:30

until it was absolutely necessary.

12:32

But the idea that he's a recluse? That's

12:35

not true. It's just that he's not interested

12:38

in

12:38

putting on a public performance.

12:41

Growing up in New Hampshire, Souter

12:43

was active in his church community. He

12:45

was pretty popular in grade school and high school,

12:48

says biographer Tinsley Arbro.

12:50

And he always said that he was going to

12:52

be on the Supreme Court. Some

12:54

of his friends would joke

12:56

and refer to him as Mr. Justice Souter.

13:00

In his high school yearbook, David Souter was

13:02

voted most likely to succeed and

13:04

most sophisticated.

13:07

He went to Harvard and Oxford and served

13:09

as New Hampshire's attorney general and state Supreme

13:11

Court judge. He just wasn't

13:14

outspoken in the press. He was

13:16

just part of his penchant

13:19

for privacy. I might

13:21

add to that he was

13:23

appointed in part because

13:26

he was such a low profile

13:29

person.

13:30

Outstanding credentials, but

13:32

a low key personality. His

13:35

Concord, New Hampshire friends sold

13:39

him as the perfect nominee

13:42

to George H.W. Bush's

13:45

chief of staff, John Sununu.

13:48

Well, this for me is a sensitive

13:50

subject. I sat down to talk

13:52

to John Sununu, former governor

13:54

of New Hampshire and more importantly for

13:57

our purposes. Former chief of staff

13:59

to President George Herbert Walker Bush.

14:02

He talked to me because he wanted to set the record

14:05

straight about the Souter nomination. It

14:08

all began in 1990. George

14:12

H.W. Bush was about to have his

14:14

first pick to the Supreme Court,

14:17

and the Republican Party had its sights

14:19

set on abortion and overturning

14:21

Roe versus Wade.

14:24

As we've seen, the simplest

14:26

and most direct way to do it is change the judges. So

14:30

Republican Party appointments were certainly

14:32

guided by a desire to find

14:35

people who would vote to overturn Roe.

14:39

But abortion wasn't the only thing

14:41

that might have been on George H.W. Bush's

14:43

mind. The president wanted

14:46

to nominate somebody that was a good

14:48

conservative, but would minimize

14:51

the chance of being borked again by

14:53

the Democrats.

14:54

Borked, as in Robert

14:57

Bork. Looming over

14:59

Bush's nomination of David Souter was

15:02

a different nomination that had happened

15:05

three years earlier. And

15:07

I today announce my intention to nominate

15:10

United States Court of Appeals judge Robert

15:12

H. Bork to be an Associate Justice

15:15

of the Supreme Court.

15:16

President Ronald Reagan nominated

15:19

Bork to the Supreme Court in 1987, resulting in

15:23

some pretty infamous confirmation

15:25

hearings. Up next, we continue

15:28

our coverage of today's hearing. Committee Chairman

15:30

is Joseph Biden of Delaware.

15:31

Judge, welcome back. Committee

15:34

will come to order. Before Bork even opened

15:37

his mouth to speak, then-Senator

15:39

Joe Biden told the committee

15:42

he was concerned. And you are no ordinary nominee,

15:44

judge. You've been recognized

15:47

as the leading, a leading, perhaps the

15:49

leading proponent of

15:52

a provocative constitutional philosophy, one

15:54

that when

15:54

I was a little boy, called originalism.

15:58

Bork explained his interpretation of it in

16:00

his opening statement. How should a judge

16:02

go about finding the law? The

16:05

only legitimate way, in my opinion, is

16:09

by attempting to discern what those

16:11

who made the law intended.

16:13

Democrats thought his theory

16:15

would lead to dangerous conclusions

16:18

on the ground. Robert Bork's America

16:21

is a land in which blacks would sit at segregated

16:23

lunch counters.

16:25

Women would be forced into back

16:27

alley abortions. And one of their biggest

16:29

fears was that he'd overturned Roe

16:31

versus Wade. When

16:33

Bork was asked about the right to an abortion,

16:36

he was honest. I don't mean, Senator,

16:38

to try to offer anybody

16:41

some hope that I would find that constitutional

16:43

right. He didn't say much to assuage

16:45

their concerns. I think Judge

16:48

Bork at that time made the mistake

16:50

of thinking that his confirmation

16:52

process was an opportunity to discuss

16:54

the philosophical pluses and minuses

16:57

of a lot of critical issues. John

16:59

Sununu again. And the Democrats

17:01

jumped on that to make him sound

17:04

like a radical through a process

17:06

of attack that nowadays is

17:08

recognized as being borked. I've

17:11

never understood when people say he was borked,

17:14

like something unfair happened

17:16

to him. Former Souter Clerk Judge

17:18

Rubin. I think he accurately

17:21

represented his views at

17:24

the hearings, and a

17:26

majority of the Senate decided they

17:28

didn't want him to be on the

17:30

Supreme Court.

17:36

All of the Democrats and six

17:38

Republicans rejected Bork's

17:41

nomination. It became

17:43

a bit of a cautionary tale about

17:46

what happens when a candidate to the Supreme

17:48

Court is transparent about

17:51

their views. When I

17:53

got to be chief of staff, I was certainly aware

17:55

that this was something that President Bush had

17:58

to keep in mind as he made his nomination.

18:07

I look forward to presenting Judge Souter's

18:09

nomination to the Senate as quickly

18:11

as possible. In the summer

18:13

of 1990, President George H.W.

18:16

Bush announced his nomination in the

18:18

White House. And I look forward as

18:20

well to a fair and expeditious

18:23

confirmation process. Helen.

18:26

Did

18:26

you ask Judge Souter his

18:29

views on abortion? Do

18:31

you know what his views are and the primitive

18:34

action and all of these things have become so

18:36

controversial, the major issues of

18:38

the day? No, and I had

18:40

one meeting with Judge Souter. I was

18:42

very impressed, but in my view it would

18:44

have been inappropriate

18:46

to ask him his views on

18:48

specific issues. Sir, follow up.

18:51

You're not certain in your own mind how justice

18:53

suitable votes... Reporters kept pressing

18:55

him about this over and over.

18:58

You all can keep trying all day long

19:01

to get me to comment on abortion

19:03

in relation to this nomination. And

19:06

please keep stop trying because I'm not going

19:08

to respond in that vein.

19:10

President Bush said he didn't ask

19:12

David Souter about abortion, but

19:15

his chief of staff, Sununu, did.

19:18

I said, David, how would you act on

19:20

Roe v. Wade? In his answer,

19:23

he told me he thinks abortion is

19:25

an abomination.

19:27

And then he said, but I don't want to go any

19:29

further on discussing an issue

19:31

that may come before the court. Souter

19:34

tried to convey to us that he was a conservative

19:36

on all issues, including the life issue.

19:39

But

19:39

Sununu says he remained skeptical.

19:42

I thought he'd be a decent judge,

19:44

a good judge, but certainly not

19:46

necessarily my first pick. What

19:49

ultimately swayed the president, do you

19:51

think, toward David Souter? I

19:54

don't know. I never pressed

19:56

the president to explain his decision

19:58

to me. People certainly

20:00

thought that Justice Souter had

20:02

been picked deliberately because

20:06

he was a movement conservative

20:08

who just didn't have a published

20:11

track record. Judge Rubin says,

20:13

unlike Robert Bork, Souter was

20:15

a mystery from the start. He

20:17

hadn't had a decision about abortion

20:20

or really any major

20:22

constitutional issue that I can think of.

20:25

I think he'd only sat one day, heard oral

20:27

argument one day on the First Circuit and

20:30

not issued any written opinions yet when he was nominated.

20:33

So doubtless

20:36

people on all sides wondered, you know, who

20:38

is David Souter? Welcome

20:52

back to the hearing, Judge Souter. As

20:55

indicated before we left, we would welcome

20:58

any opening statement you have

21:00

to make for as short or as long

21:02

as you wish to make it. And

21:05

then we will begin with questioning. Thank

21:07

you, Mr. Chairman. I probably

21:10

should begin by asking if you can hear me as

21:12

well as I can hear you. Yes, we can,

21:14

Judge. Unlike

21:17

Bork, Souter

21:17

did not begin with a high-minded

21:20

legal philosophy. And he began

21:22

by reflecting on all the press coverage

21:24

that swirled around him.

21:33

And with a shout out to the trees that

21:36

had fallen to make those newspapers possible.

21:43

He also gave a shout out to the human

21:45

beings in his life. First, the

21:47

ones in his hometown of Weir, New Hampshire.

21:49

There is a closeness of people in a small town

21:52

which is unattainable anywhere else. And

21:54

the human beings he represented as a

21:56

lawyer. I remember very well a

21:58

woman who's... Personal life

22:01

had become such a shambles that she had lost

22:03

the custody of her children and she was trying

22:05

to get them back.

22:07

And then from those human beings, he

22:10

zoomed out. The first lesson,

22:13

simple as it is. To the lessons

22:16

he would take with him to the Supreme Court. Is

22:18

that whatever court we are in, whatever

22:21

we are doing, whether we are on

22:23

a trial court or an appellate court, at

22:28

the end of our task,

22:30

some human being is going

22:33

to be affected. Some

22:36

human life is going to be changed

22:39

in some way by what

22:41

we do.

22:45

This idea that he wanted to remain

22:48

close to the humans affected

22:50

by the law was something we kept

22:52

hearing from his clerks. One of the most

22:55

beautiful things that I think he ever wrote

22:57

was about the myth of Antaeus.

23:02

Antaeus was one of these Greek monsters

23:05

who had enormous strength but only

23:07

if he was touching the ground. And

23:10

Hercules famously

23:12

defeated Antaeus only by picking

23:14

him up and holding him so far above the ground

23:17

that Antaeus lost all of his strength. And

23:20

for just a suitor, that was a touchstone

23:22

for how judging should work. That you needed

23:25

to keep your feet on the ground, you needed

23:27

to be connected to facts and

23:29

reality in order to articulate

23:32

those grand generalities of the law. So

23:35

that is very much the kind of judge he was.

23:38

If indeed we are

23:40

going to affect the lives of other people,

23:44

we had better use every power of

23:47

our minds and our hearts and our beings

23:50

to get those rulings right.

23:58

Thank you, Mr. Chairman. Thank you very much. much

24:00

judge for a

24:03

statement that gives us all more

24:05

insight into you. Maybe a little glimpse

24:07

into your heart. I think

24:08

you've- Chair of the committee, Senator Biden

24:11

seemed charmed and

24:13

then Biden dove into the question

24:15

of abortion, but Souter

24:18

seemed ready for this. Toward the

24:20

one case, which has been on everyone's

24:23

mind and everyone's lips since

24:25

the moment of my nomination. Uh,

24:27

Roe v. Wade, upon which, uh, the,

24:30

uh, uh, the, the wisdom

24:32

or the appropriate future of which it would

24:34

be inappropriate for me to comment.

24:36

Souter would not say how

24:38

he'd rule. And the only thing I can say

24:41

is, as you know, is that Roe v. Wade

24:43

is discussing a, a constitutional

24:45

issue.

24:46

Anytime Roe came up, there really

24:48

isn't anything I can say about reconciling

24:50

it. He just wouldn't answer. If I

24:52

were to be confirmed, it's just

24:54

a subject that I cannot discuss without giving

24:57

misleading suggestions. We need

24:59

to develop an abbreviated answer so

25:01

that each time this, this situation arises,

25:04

you can just say, uh, uh,

25:06

whatever it is you choose to say in a few words, so

25:08

we don't have to go through the long explanation.

25:10

I understand where you're coming from and I didn't expect it.

25:13

Many anti-abortion Republicans thought

25:16

Souter was skillfully avoiding

25:18

saying how he really felt.

25:21

But when the time came, Souter

25:23

would know what to do. And

25:25

John Sununu said, famously,

25:29

this nomination is a home run. I

25:33

respected the president's decision and

25:35

I wholeheartedly supported David Souter

25:38

in, in all my public comments. On

25:40

the basis of what he told me, I believed

25:43

he was going to be a home run.

25:44

And that excited the conservative

25:47

base, I think, and worried liberals.

25:50

There were these posters that

25:53

abortion rights groups

25:55

had

25:56

come up with that said stop Souter or

25:58

women will die. Despite

26:03

fears from abortion rights advocates,

26:06

Justice David Souter was confirmed

26:08

by the Senate overwhelmingly,

26:11

by a vote of 90 to 9. Souter

26:14

was sworn into the Supreme Court on October 8, 1990.

26:19

And President Bush and all the other Republicans

26:22

watched as their stealth candidate

26:25

began to make decisions on the Supreme

26:27

Court

26:29

and reveal who

26:31

he was.

27:03

More Perfect is supported by BetterHelp.

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That's better help.com

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slash perfect.

27:36

On the basis of what he told me, I believed

27:38

he was going to be a home run.

27:41

I'm Julia Longoria. This is More Perfect.

27:44

And we're back with the story of Justice Souter,

27:47

the stealth candidate to the Supreme Court.

27:51

Well, I think any first

27:53

year for a justice is pretty difficult.

27:56

Souter's biographer, Tinsley Yarbrough.

28:00

This not much happened that

28:02

first year. The decisions he

28:04

wrote were pretty uncontroversial

28:06

to the Republican Party. I remember,

28:08

for example, the court upheld

28:11

a ban on nude dancing.

28:13

Up next

28:16

on Supreme Court Review, the court is

28:18

being asked to decide if nude dancing

28:20

is conduct or expression protected

28:22

by the First Amendment. Leader wrote a

28:24

concurring opinion in

28:27

which he joined

28:29

the ban

28:30

on nude dancing. And

28:34

so Republicans would have said to

28:36

that, like, yes, this man's a home run kind

28:38

of thing. That was in line with the

28:40

one. Right, right. That

28:43

was the case. No nude dancing.

28:51

On the outside, it seemed this

28:54

was a home run. On

28:56

the inside, Souter seemed

28:58

to be going through something.

29:02

The summer after his first year, Souter

29:05

wrote a letter to Justice Blackmon

29:08

and said, quote, I

29:10

have wanted as much as possible to be

29:12

alone, to come to terms

29:15

in my own heart with what has

29:17

been happening to me. What

29:19

do you think he meant by that? Well,

29:21

I think it was

29:23

all pretty overwhelming to

29:25

him. The nomination

29:27

itself and the press attention

29:30

that he got was just over

29:32

the top. Of course, Blackmon

29:34

had some history there,

29:37

too.

29:38

Over the course of his first year

29:41

on the court, Souter had become close

29:43

to Justice Harry Blackmon.

29:46

Despite the fact that Souter ate apples,

29:49

corn, and all, Harry Blackmon

29:51

once called Souter the

29:53

only normal person on

29:55

the Supreme Court. Like

29:58

Souter, Blackmon was appointed

30:00

by a Republican president. He

30:03

disappointed the party over time because

30:05

he proved to be a lot less conservative than

30:08

people had expected.

30:09

Blackmon famously wrote the Roe v. Wade

30:12

decision in 1973. And

30:15

with any luck for the Republicans, Roe

30:17

v. Wade was about to have its

30:20

biggest test as Souter

30:22

approached his second year on the bench. Earlier

30:25

today, the Supreme Court of the United States

30:28

heard arguments in the case of Planned Parenthood

30:30

v. Casey, an abortion case

30:32

from Pennsylvania.

30:33

Planned Parenthood v. Casey. Governor,

30:37

if you'd step up to the microphones, please. Bob

30:40

Casey was the governor of Pennsylvania.

30:42

Unfortunately, in the Roe case, in

30:45

my judgment, the Supreme Court didn't go

30:47

far enough in asserting and

30:49

protecting the integrity of

30:51

the unborn child. A

30:53

Pennsylvania statute sought to protect

30:56

fetal life by adding requirements

30:59

for people who wanted to get an abortion.

31:01

Patients needed to inform their spouse

31:04

to give informed consent and wait 24

31:07

hours before getting the procedure.

31:09

Planned Parenthood sued the governor,

31:11

saying the law violated Roe v. Wade. It

31:14

is our view that the question before

31:17

the court is whether or not

31:19

Roe v. Wade remains the law

31:21

of the land. And whether or not... Peter Rubin

31:24

was

31:24

a Souter clerk at that time. By

31:26

the time of Casey

31:29

in 1992,

31:31

it was thought that there were at least

31:33

five votes on the Supreme Court to

31:36

overrule Roe. Souter

31:39

was thought to be that fifth vote, Sununu's

31:42

home run to overturn Roe. He

31:45

had been a fairly conservative

31:48

justice on the New Hampshire Supreme Court.

31:50

He was a very typical, moderate

31:53

conservative judge. And what

31:55

had once been a quite normal kind of Republican.

31:58

Souter thinks judges... should be

32:01

hesitant to make any sudden

32:03

moves. — Suter is not an

32:05

activist. And he thinks that

32:07

courts are very important because

32:10

they're a moderating force on society,

32:13

so that courts

32:14

can try to tamp down partisan

32:16

conflict. — His clerk,

32:19

Kermit Roosevelt, says this idea sort

32:21

of ran in Suter's family.

32:24

— Suter had a New England ancestor, who

32:26

was a town magistrate or

32:28

some kind of judge. And as

32:31

the Salem witch trials were going

32:33

on,

32:34

the hysteria was sort of spreading from

32:36

town to town. And someone

32:38

came to him and

32:40

said, you know, this girl is a witch, just

32:42

like in Salem, you know, and we're going to put her on trial.

32:45

And

32:45

his ancestor just looked at the man and said,

32:48

there will be none of that here, and

32:51

refused to let that

32:53

hysteria take hold of the town and refused

32:55

to let that kind of persecution

32:58

start. — Fascinating.

32:59

— And that, I think, is sort of what

33:01

Justice Suter thought courts were supposed to do.

33:05

— Justice Suter valued stability.

33:08

— It's a very modest approach to judging.

33:11

— Former clerk Heather Gerken again.

33:14

— The justice is a common law

33:16

judge. Common law is

33:18

the law developed over centuries

33:22

by judges looking at similar

33:25

kinds of questions and building out the case law

33:27

over time. So it's not a top-down,

33:30

I am the great philosopher and I will command

33:33

from on a high and thus and so shall be the principles.

33:36

And I think you see that most clearly in

33:39

the opinions where he is

33:41

focused on the question of stare decisis.

33:44

— Stare decisis

33:46

is the fancy Latin phrase for the idea

33:48

that courts should try to uphold

33:51

the decisions that came before them.

33:53

Follow precedent. — Justice Suter

33:56

takes precedent very seriously, in

33:58

part because...

34:00

He values stability, but I think

34:02

it also shows the extent

34:04

to which he thinks that courts are important

34:06

and individual judges aren't.

34:10

He doesn't think that he's better

34:13

or smarter than the judges

34:15

who went before him.

34:17

We know that precedent was on

34:19

Souter's mind when he sat down

34:21

to write the Casey opinion. In

34:24

the exchanges of the justices, memos

34:27

that were going back and forth, it's very clear

34:30

that he, whatever his

34:32

personal view about Roe v. Wade

34:35

and the abortion right, it was very clear

34:38

to him that the court had

34:40

no business reversing

34:43

the Roe decision, and he

34:45

wanted to find some way of getting

34:49

the court to avoid a reversal.

34:57

Planned Parenthood of Southeast Pennsylvania

35:00

v. Casey in a companion case

35:02

will be announced by justices O'Connor,

35:04

Kennedy and Souter.

35:07

The opinion was announced and written

35:09

in a pretty unusual way. There

35:11

were three bylines. All

35:13

people who were originally put there by

35:16

Republican presidents fully

35:18

co-authored the opinion.

35:20

Lots of people thought that Roe was going to be overturned.

35:23

So,

35:25

it was a moment of high drama.

35:28

Justice Sandra Day O'Connor went

35:30

first. Justice Kennedy,

35:32

Justice Souter and I have filed a joint

35:35

opinion,

35:38

and we conclude that the central holding

35:40

of Roe should be reaffirmed. Some

35:44

of us as individuals find abortion

35:46

offensive to our most basic principles

35:49

of morality, but that can't

35:51

control our decision. Our

35:54

obligation is to define the liberty of

35:56

all, not to mandate our own moral

35:58

code.

35:59

Surprising everyone, this

36:02

plurality opinion preserved

36:04

the fundamental right to abortion.

36:06

We reaffirm the constitutionally

36:08

protected liberty of the woman to decide

36:10

to have an abortion before the

36:13

fetus attains viability and

36:15

to obtain it without undue interference

36:18

from the state.

36:18

Justice Souter

36:21

wrote the part of the opinion talking about respect

36:24

for precedent. Here's Justice Souter. The

36:26

foundation for our decision today is

36:28

the conclusion that if there was

36:30

error in Roe, its significance is outweighed

36:33

by the importance of following prior precedent.

36:36

Stary Decisis is necessary

36:38

not only to accomplish the mundane tasks

36:41

of any legal system, but to

36:43

realize our hope for a stable society

36:45

aspiring to the rule of law. Like

36:48

the character of an individual, the legitimacy

36:50

of the court must be earned over time. If

36:53

the court's legitimacy should be undermined,

36:56

the country would also, in its very ability

36:59

to see itself through its constitutional

37:01

ideals.

37:03

The court's concern for legitimacy...

37:05

It's worth noting. The justices

37:07

did open the door to significant

37:10

limits on the right to an abortion. They

37:12

allowed governments to restrict the right

37:14

with things like a 24-hour waiting

37:16

period. But at the time, the

37:19

headline across America was, Roe

37:23

holds. The

37:25

nation was watching Justice Souter.

37:28

After the questions raised by his confirmation

37:30

hearings, the public finally

37:33

had an answer. His co-authorship

37:35

of Casey told everyone, you

37:38

know, this is who he is. This

37:40

was not good news for Bush

37:42

Chief of Staff John Sununu.

37:45

Do you remember what people were saying to you

37:47

when the Casey decision came down? Yeah,

37:49

you blew it. I

37:53

thought David was going to be a good judge on

37:55

the Supreme Court and tried

37:58

to support the president's decision.

37:59

wholeheartedly in all of my assurances

38:02

to the conservative groups around the country.

38:05

I was so consistent and so aggressive

38:07

in that direction is one of the reasons

38:10

I really feel betrayed. I think

38:12

it's something he planned all along, to

38:15

be deceptive during this

38:17

process, to very clearly obfuscate

38:20

the real positions he had on the

38:23

life issue, the Roe v. Wade issue.

38:25

What I'm hearing you say is that you think he was

38:27

being deceptive out of

38:29

ambition for wanting to be on the Supreme

38:31

Court? Exactly right.

38:34

Suitor's clerk Ruben says there's nothing

38:37

deceitful about the way he ruled. I

38:39

think if you go back now and read Justice

38:42

Suitor's testimony

38:44

at his confirmation hearing, you'll

38:46

find that every word of it is truthful.

38:52

Casey wasn't the only decision that term

38:54

where suitor disappointed conservatives. That

38:58

same year, he joined the majority in

39:00

ruling that prayer in public schools

39:02

violated the separation of church and state.

39:06

But the abortion decision seemed to be the

39:08

biggest disappointment. Coming

39:10

away from Casey, how

39:12

do you think the public's image

39:14

of Justice Suitor changed? Well,

39:18

that's what gave rise to the no more

39:20

suitors meme. I

39:22

don't think we had memes then. But

39:25

I think they did have posters that said no

39:27

more suitors. No more suitors. No

39:29

more suitors. No more suitors. Justice David

39:31

Suitor, someone who was appointed by a Republican president,

39:34

ended up being a vote for the liberal side of the Supreme

39:36

Court. The slogan, the mantra within the Republican

39:38

Party was no more suitors.

39:40

So you know, first we had our stop suitor or women

39:43

will die posters, and then we had our no more suitors

39:45

posters because the Republicans realized they hadn't

39:47

gotten what they wanted.

39:49

No more suitors means we're going

39:52

to know how this person is going to vote. We're

39:54

not going to get disappointed or surprised again.

40:00

No More Suiters, rallying cry,

40:02

was on display in 2005 when

40:05

Sandra Day O'Connor announced her retirement.

40:08

This morning I'm proud to announce

40:11

that I'm nominating Harriet Ellen

40:14

Myers to serve... President

40:16

George W. Bush nominated

40:18

Harriet Myers, a lawyer friend

40:21

of the Bush family,

40:22

and immediately... No, no, no. ... Republicans

40:24

raised a red flag. She was a David Souter.

40:27

No More Suiters. An unknown,

40:30

unpredictable, stealth candidate and

40:32

looked... While she seemed conservative, Myers'

40:35

views on key conservative issues like abortion

40:38

weren't totally clear. Harriet

40:39

Myers would be another David Souter, kind of an indistinct

40:42

even liberal justice. A reporter called

40:44

her Souter in a skirt.

40:47

Amidst all the pressure, two weeks before

40:49

her confirmation hearing, Myers

40:51

withdrew her nomination

40:53

and in her place, President Bush nominated

40:56

the antithesis to Justice Souter,

40:58

the reliable staunch

41:01

conservative judge, Samuel Alito.

41:03

Good afternoon. The Senate Judiciary

41:06

Committee will now proceed to the confirmation

41:08

hearings of Judge Samuel Alito

41:11

Jr. for the Supreme Court of

41:13

the United States. Thank

41:15

you very much, Mr. Chairman. I am

41:17

deeply honored... And at the confirmation hearing... ... to hear

41:20

before you...

41:20

You might have assumed Alito would have sounded like

41:22

Bork, explaining his views on

41:25

abortion. But Alito

41:27

took a page from Souter's book. ... if

41:30

the issue were to come before me, if

41:32

I am fortunate enough to be confirmed, the

41:35

first question would be the issue of starry

41:37

decisis. He hedged

41:39

and talked about starry decisis.

41:43

And in the years since then, a strange

41:46

thing has happened. When it

41:48

comes to talking about abortion, Justice

41:51

Neil Gorsuch...

41:52

... the precedent is a key part of that because... Justice

41:55

Brett Kavanaugh... ... as a judge, it

41:57

is an important precedent... They

41:59

also... took a page from Souter's book in

42:01

their confirmation hearings. One

42:04

of the really funny things about Souter, I

42:06

think, is that his confirmation

42:08

hearings became kind of a model for what

42:11

judges say because he sounded

42:13

so moderate and reasonable and

42:15

modest. Here's Souter. I

42:18

have not made up my mind.

42:20

And here's Clarence Thomas, just

42:23

a year later. I have not

42:25

made, Senator, a

42:28

decision one way or the other. And

42:30

here's Amy Coney Barrett. Again, I can't

42:33

pre-commit or say, yes, I'm

42:35

going in with some agenda because I'm

42:38

not. I don't have any agenda. I have

42:40

no agenda to try to overrule

42:42

Casey. All of them went

42:44

on to overturn Roe and

42:47

Casey.

42:47

Judges after Souter say

42:49

much the same thing, but he really meant it. And

42:52

I think that many of the people who came after him didn't.

42:58

I think the Souter disappointment

43:01

and what happened before him with Bork

43:04

was the red flag, if you

43:06

will, to conservatives.

43:08

This is John Sununu again. The

43:10

beginning of a message that

43:14

Supreme Court seats are important.

43:16

The Democrats may have recognized before

43:18

conservatives how important they were, but

43:21

conservatives now understand they are

43:23

important and they're involved

43:25

much more aggressively in the process and

43:28

devoting more time and more assets

43:30

to preparing well and to dealing

43:33

with the nominations when they come to the Senate

43:35

for confirmation.

43:37

And frankly, I think it was a major

43:40

impetus, among other things, for

43:42

the efforts of groups like the Federalist

43:44

Society that put together a

43:47

list of judges for Trump and so on.

43:58

Throughout his career, Justice Souter

44:00

kept defying expectations, and

44:03

he kept disappointing Republicans. He

44:07

voted to uphold affirmative action

44:10

and the Voting Rights Act. It

44:12

was reported that he drafted a blistering

44:14

dissent in Citizens United,

44:17

which was never published.

44:18

And

44:20

in the Bush v. Gore election, he

44:22

rejected Bush's request to

44:24

stop counting votes.

44:28

Which brings me to one final

44:30

story I heard about Justice Souter.

44:33

Souter was apparently a mess after Bush

44:35

v. Gore. NPR politics reporter

44:38

Ashley Lopez. She

44:40

heard that the politicized way the court

44:42

ruled in that case was part

44:44

of the reason Justice Souter decided

44:47

to retire. And in fact, he almost resigned

44:50

because of the ruling, and he would, like, cry

44:52

sometimes, like wept.

44:54

One journalist said Justice Souter was

44:57

shattered by Bush v. Gore. Hahahaha.

45:00

Shattered. Look,

45:04

I have no idea. Former Souter clerk

45:06

Judge Rubin is skeptical

45:08

about this story. I've seen him since then.

45:11

He's not shattered. You know what I mean?

45:14

But I put the story to Kermit Roosevelt,

45:16

who clerked for Souter just a year

45:18

before Bush v. Gore. Do you know

45:20

what happened behind the scenes? I

45:25

don't know if I can really talk about that. Yeah.

45:29

Why not? Um, I

45:32

don't know if he would want

45:36

to. Yeah. I

45:38

mean, so I can tell you, generally speaking,

45:41

Bush v. Gore was upsetting to

45:43

Justice Souter. And I think he said

45:46

that

45:46

publicly. Because it

45:49

looked as though the justices were behaving

45:51

as partisans. And

45:54

partisanship is what Justice

45:56

Souter most firmly believes

45:59

should not be a part of.

45:59

of judging. So

46:03

I think it shook his faith in the institution.

46:08

I think that no more suitors is

46:12

sort of a poignant phrase because

46:14

there aren't justices like David Souter

46:17

anymore. But I

46:19

think that justices like David Souter are what

46:21

we need.

46:24

I hear like a certain like wistfulness

46:26

or disillusionment in

46:28

your voice when you talk about him. I

46:32

do feel sad because I think we do

46:34

see the court tending

46:36

to take extreme positions and

46:39

amplify rather than reduce

46:41

partisan conflict.

46:44

Justice Souter is sort of an

46:46

example of what

46:49

we could have been the way

46:51

that the court could have been. That

46:54

kind of justice is exceedingly rare

46:57

nowadays.

47:05

I could say one thing, which is that's

47:07

the so-called Souter whisperer, Heather

47:10

Gherkin, again. When he retired,

47:13

I remember thinking two

47:15

things. So first that it was really

47:17

sad for the court to lose someone so

47:20

wonderful and such a great judge.

47:23

He had a clear North

47:25

Star and he never wavered from it.

47:28

He always did what was ethical.

47:31

And it made you believe that it was possible

47:33

to do and still live in this

47:35

complicated world, in this complicated profession,

47:38

with these complicated

47:39

jobs. And

47:43

he

47:43

had served his country

47:45

and his state for a long time and he was

47:47

entitled to just

47:50

be happy. More

48:08

Perfect is a production of WNYC

48:10

Studios. This episode was produced

48:12

by Gabrielle Burbet and Julia Longoria

48:14

with help from me, Emily Madre. It

48:17

was edited by Jenny Lawton and fact-checked

48:19

by Naomi Sharp. Special thanks

48:22

this week to Tara Grove, Rita Green,

48:24

and David Goldberg. The More

48:26

Perfect team also includes Emily Seiner,

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Emily Botin, Whitney Jones, Alyssa

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Eads, and Salman Ahad Khan. The

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show is sound design by David Herman and

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mix by Joe Plourde. Our theme

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is by Alex Overington and the episode

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art is by Candice Evers. If

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you want more stories about the Supreme Court, we've

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audio is from Oye, a free law project

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by Justia, and the legal information

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