Latest news with #DavidSouter
Yahoo
05-06-2025
- Politics
- Yahoo
Justice David Souter and state constitutional law
Among scholars who study state courts and state constitutions, Justice David Souter was notable for the experience at the state level that he brought with him to the Supreme Court. (Photo by) Following retired U.S. Supreme Court Justice David Souter's passing last month, commentators memorialized the justice with appreciations of his analytical acumen and commitment to the role of neutral arbiter. Steven Vladeck, for instance, praised Souter for 'just how seriously he took his job as a justice — and a judge.' At the same time, however, as longtime Supreme Court observer Linda Greenhouse noted in The New York Times, Souter's 'name was on so few significant opinions and his profile at the court was so low that after his first few years, legal academia essentially stopped paying attention to him.' Not all of legal academia. Among scholars who study state courts and state constitutions, Souter was notable for the experience at the state level that he brought with him to the Supreme Court. During his tenure as a member of New Hampshire's highest court, that court contributed to the development of state constitutional law in significant ways. The Granite State stood at the forefront of the jurisprudential phenomenon known as the 'new judicial federalism' — the practice of state courts interpreting the individual rights provisions of their own constitutions independently of the Supreme Court's rulings on the parallel protections contained in the federal Bill of Rights. The new judicial federalism was inspired, in large part, by an essay published in the Harvard Law Review in 1977. Alarmed by the extent to which the Supreme Court was retreating from the robust protection of individual rights under the federal constitution, Supreme Court Justice William Brennan reminded readers that 'State constitutions, too, are a font of individual liberties, their protections often extending beyond those required by the Supreme Court's interpretation of federal law.' In other words, individuals and advocates should consider, in appropriate cases, the depth and reach of state constitutional individual rights provisions. The New Hampshire Supreme Court heard Brennan's call. In its 1983 decision in State v. Ball, the high court held that, when state constitutional issues are properly raised, the state courts have 'a responsibility to make an independent determination of the protections afforded in the New Hampshire Constitution.' To ignore this obligation, the court continued, would be to fail in the duty to defend the state constitution, which in turn would undermine 'the federalism that must be so carefully safeguarded by our people.' A commitment to the independent interpretation of the state constitution necessarily entails the development of approaches and modes of analysis suited to that particular constitutional context, which Justice Souter recognized in a 1986 case, State v. Bradberry. Souter had been appointed to the high court when the court issued its opinion in Ball, but he did not participate in the decision. Bradberry thus presented an opportunity for him to explain the stakes for state constitutional law in individual rights cases: 'If we place too much reliance on federal precedent,' he wrote, 'we will render the State rules a mere row of shadows; if we place too little, we will render State practice incoherent. If we are going to steer between these extremes, we will have to insist on developed advocacy from those who bring the cases before us.' Justice Souter's plea for support from the bar in state constitutional cases continues to resonate. In our treatise on state constitutional law, 'The Law of American State Constitutions,' my co-author Bob Williams and I referred to Souter's opinion in Bradberry as a definitive statement on the matter. In the book, we echoed the perspective articulated in his opinion: State courts that rely wholly on federal law in interpreting their state constitutional rights protections risk diminishing those protections, while too little respect for federal precedent risks isolating a state's law from the larger, national discourse about the meaning of common individual rights provisions. His experience with state constitutional law and the new judicial federalism distinguished Justice Souter's career from that of most of his fellow U.S. Supreme Court justices, and the New Hampshire Supreme Court's commitment to fostering independent state constitutional interpretation in State v. Ball has distinguished it from other state courts. In Bradberry, Justice Souter maintained that the commitment represents but an initial step toward reckoning with state constitutional text. In ascertaining the meaning of the state's charter, Souter advised, the state's courts should expect to rely on counsel representing each side of a case to illuminate the text. Such advocacy allows judges to consider the full range of interpretive possibilities that may lie in particular provisions of the New Hampshire Constitution — and creates an alternative to relying exclusively on the views of nine judges in Washington, D.C., who are tasked with construing a similar but fundamentally different constitution
Yahoo
19-05-2025
- Politics
- Yahoo
Alito and Roberts take stock as they near their third decade on the bench
As Chief Justice John Roberts and Justice Samuel Alito approach their two-decade milestones on the Supreme Court, they appear to be taking personal stock. Twice in the past two weeks, Roberts, 70, has mused before audiences about retirement. The 75-year-old Alito wrote wistfully about Justice David Souter's early retirement choice. 'I was happy that he was able to spend the last 16 years of his life in the surroundings he cherished living the kind of private life he preferred,' Alito said as the court announced the May 8 death of Souter, who left the bench in 2009 at the relatively young (for a justice) age of 69. Roberts, at a Georgetown University Law Center appearance, recalled the 2009 day that Souter told him he was going to retire. Souter told Roberts he wanted to return to his native New Hampshire, to trade, as Roberts put it, 'white marble for White Mountains.' An avid reader, Souter also sought a more contemplative life. 'There aren't many people who would have that kind of perspective,' Roberts said, 'including myself.' The end of the court's annual session has traditionally been the season for Supreme Court retirement announcements and speculation. Thursday's oral arguments involving Trump's plan to end birthright citizenship marked the final public arguments of the current term; rulings will be issued through the end of June. When CNN asked Alito last week about his own retirement plans, he declined to comment. In November, amid predictions from conservative activists about an impending Alito departure, the Wall Street Journal reported that people close to the justice said he had no plans to leave. Since then, friends of Alito have told CNN his intentions do not appear to have changed. Factors he would weigh, they say, include the usual dynamic of personal health as well as his confidence in who the president might choose as a successor. If Alito, Roberts or Justice Clarence Thomas, who will turn 77 next month, retire in the next four years, it would give President Donald Trump an opportunity to seal a deeper generational legacy on the Supreme Court. At an appearance in Buffalo, New York, this month, Roberts dismissed questions about any imminent retirement but also referred to natural concerns an older justice has of becoming 'a burden to the court.' US District Judge Lawrence Vilardo, a friend of Roberts' from their shared time at Harvard Law School, began the exchange by asking the chief justice, also a Buffalo native, if he ever thought about retiring. 'No,' Roberts said firmly. 'I'm going out feet first.' But then Roberts acknowledged that 'if your health declines at all … if you recognize that you're a burden to the court,' the answer could be different. (Roberts was hospitalized in 2020 after falling at a country club near his home. He had previously experienced seizures, and a court spokeswoman said at the time that his doctors ruled out seizure as the cause of the fall and a forehead injury.) Roberts, who has looked healthy at recent public appearances, related to Vilardo a precautionary step he'd taken to avoid staying on the bench if he lost his faculties. 'I have very good friends,' he said, 'and I sat down with them, and said, I want at the appropriate time – because you don't always notice that you're slipping – I want the two of you to tell me that it's time to go.' Roberts then quipped that there was a long pause, 'and the two of them at once said, 'It's time.'' Responding to a question about whether he enjoys the job, Roberts said, 'It's exciting to get up every morning and go into work.' Roberts and Alito were selected in 2005 within a few months of each other by then-President George W. Bush. The appointments were made during a series of dramatic national events that included one of the most destructive hurricanes in history (Katrina) and the sudden death of a chief justice (William Rehnquist). Since then, Roberts and Alito have transformed the modern Supreme Court. Chief Justice Roberts led the bench on a rightward path, bolstering presidential powers and diminishing individual rights. Alito is likely best known for writing the court's 2022 opinion that reversed Roe v. Wade and ended nearly half a century of abortion rights. Signing onto that opinion were Thomas and the three Trump appointees from his first term: Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett. At the recent Georgetown Law event, Roberts recalled his 2003 confirmation to a US appellate court and the 2005 high-court elevation, but not before he reminded Dean William Treanor of a 1992 episode. Then-President George H.W. Bush had nominated him to the US appellate court, but Roberts was blocked in the Senate. 'Some guy named Biden said, 'Nah, let's not give him a hearing,'' Roberts said, with a touch of the lingering sting. Joe Biden, who would later become president, was chairman of the Senate Judiciary Committee at the time. In his public appearances, Roberts typically skips over that disappointment at age 37. But he used it last week as a lesson for the Georgetown students nearing graduation. 'Looking back on it – this is in terms of advice – you want your bad luck to be good,' Roberts said. 'I think if I had been confirmed at that early age, when a vacancy came up on the (Supreme) Court, I probably would have had far too much baggage to be considered for it.' As it was, Roberts had a slim record of decisions from only two years on the appellate bench court before his Supreme Court nomination. President George W. Bush's selection of Roberts to be chief justice ultimately led to Bush's choice of Alito for an associate justice post. The sequence of events and shifting nominations of 2005 was triggered by Justice Sandra Day O'Connor's July retirement announcement as the annual session ended. Bush announced that he would nominate Roberts for O'Connor's associate justice seat. But before the Senate could hold its scheduled confirmation hearings for Roberts, Rehnquist died on September 3 and created a new opening. Bush, struggling with the federal response to the devastating Hurricane Katrina at the time, quickly decided to switch Roberts to the new vacancy. Once Roberts was confirmed as chief justice, the president decided to replace O'Connor with his White House counsel, Harriet Miers. But Miers, who had little constitutional law experience or record, withdrew her name a few weeks later, after being roundly criticized by conservative leaders, including former US appellate court Judge Robert Bork, who declared her nomination 'a disaster on every level.' Bush then settled on Alito, a federal appellate court judge whose conservative credentials were well-established. In their early years in the Supreme Court, Alito and Roberts, with similar backgrounds and regard for the executive branch, regularly voted together. But in time, Alito moved further to the right, and Roberts, keeping an eye on the institutional standing of the court, tried to stake out the center. Alito has been the subject of much of the speculation since the 2024 election regarding a new Trump opportunity for replace a justice. (Justices typically seek to retire when the sitting president shares their political party and would appoint a likeminded successor.) Yet Alito, and even eldest justice Thomas, are younger than the usual Supreme Court retiree. Of the last dozen justices who left the bench since 1990, most were at least 80 years old. And more than half of the departures over the past 35 years were caused by death or illness. Two of the last four justices to leave the bench died while serving, Antonin Scalia in 2016 and Ruth Bader Ginsburg in 2020. Alito remains an actively engaged, if aggravated jurist. During oral arguments, his questions can be as derisive as they are penetrating. In Thursday's dispute over judge-imposed 'nationwide injunctions' blocking Trump's order to change birthright citizenship, Alito grumbled about those judges on the first rung of the three-tiered US judiciary. 'The practical problem is that there are 680 district court judges, and they are dedicated, and they are scholarly, and I'm not impugning their motives in any way. But, you know, sometimes they're wrong, and all Article III judges are vulnerable to an occupational disease, which is the disease of thinking that I am right, and I can do whatever I want.' Alito contended judges on multimember appellate courts, such as the Supreme Court, are 'restrained by one's colleagues, but the trial judge sitting in the trial judge's courtroom is the monarch of that realm.' With his own colleagues, Alito's regular fuming appears a fact of court life, mainly accepted, sometimes even the source of amusement. During one oral argument session last term, Alito raised a hypothetical scenario that apparently rang too true. 'Let's say I'm complaining about my workplace. It's cold. It's set at 63 degrees. There isn't any coffee machine. The boss is unfriendly. All my co-workers are obnoxious.' Fellow justices begin chuckling. Thomas' laughter was especially hearty. 'I'm not …' Alito interjected, then stopped and declared, 'Any resemblance to any living character is purely, purely accidental.' Alito's more recent remarks about Souter's retreat to privacy recalls how Alito has bristled at public criticism of his rulings and certain off-bench activities. Most recently, he drew scrutiny for taking a call from Trump in early January when a former law clerk was seeking a job in the new administration. They talked just as the high court was about to consider a Trump effort to delay his sentencing in the New York 'hush money' case that dated to Trump's 2016 presidential campaign. Alito said in January that he did not discuss the case with Trump. The bonus of another round of Supreme Court appointments would not be lost on Trump. 'I totally transformed the federal judiciary,' Trump said in 2023 as he was beginning his reelection bid. Referring to his Supreme Court appointments, he added, 'I had three, and they're gold.'
CNN
19-05-2025
- Politics
- CNN
Alito and Roberts take stock as they near their third decade on the bench
As Chief Justice John Roberts and Justice Samuel Alito approach their two-decade milestones on the Supreme Court, they appear to be taking personal stock. Twice in the past two weeks, Roberts, 70, has mused before audiences about retirement. The 75-year-old Alito wrote wistfully about Justice David Souter's early retirement choice. 'I was happy that he was able to spend the last 16 years of his life in the surroundings he cherished living the kind of private life he preferred,' Alito said as the court announced the May 8 death of Souter, who left the bench in 2009 at the relatively young (for a justice) age of 69. Roberts, at a Georgetown University Law Center appearance, recalled the 2009 day that Souter told him he was going to retire. Souter told Roberts he wanted to return to his native New Hampshire, to trade, as Roberts put it, 'white marble for White Mountains.' An avid reader, Souter also sought a more contemplative life. 'There aren't many people who would have that kind of perspective,' Roberts said, 'including myself.' The end of the court's annual session has traditionally been the season for Supreme Court retirement announcements and speculation. Thursday's oral arguments involving Trump's plan to end birthright citizenship marked the final public arguments of the current term; rulings will be issued through the end of June. When CNN asked Alito last week about his own retirement plans, he declined to comment. In November, amid predictions from conservative activists about an impending Alito departure, the Wall Street Journal reported that people close to the justice said he had no plans to leave. Since then, friends of Alito have told CNN his intentions do not appear to have changed. Factors he would weigh, they say, include the usual dynamic of personal health as well as his confidence in who the president might choose as a successor. If Alito, Roberts or Justice Clarence Thomas, who will turn 77 next month, retire in the next four years, it would give President Donald Trump an opportunity to seal a deeper generational legacy on the Supreme Court. At an appearance in Buffalo, New York, this month, Roberts dismissed questions about any imminent retirement but also referred to natural concerns an older justice has of becoming 'a burden to the court.' US District Judge Lawrence Vilardo, a friend of Roberts' from their shared time at Harvard Law School, began the exchange by asking the chief justice, also a Buffalo native, if he ever thought about retiring. 'No,' Roberts said firmly. 'I'm going out feet first.' But then Roberts acknowledged that 'if your health declines at all … if you recognize that you're a burden to the court,' the answer could be different. (Roberts was hospitalized in 2020 after falling at a country club near his home. He had previously experienced seizures, and a court spokeswoman said at the time that his doctors ruled out seizure as the cause of the fall and a forehead injury.) Roberts, who has looked healthy at recent public appearances, related to Vilardo a precautionary step he'd taken to avoid staying on the bench if he lost his faculties. 'I have very good friends,' he said, 'and I sat down with them, and said, I want at the appropriate time – because you don't always notice that you're slipping – I want the two of you to tell me that it's time to go.' Roberts then quipped that there was a long pause, 'and the two of them at once said, 'It's time.'' Responding to a question about whether he enjoys the job, Roberts said, 'It's exciting to get up every morning and go into work.' Roberts and Alito were selected in 2005 within a few months of each other by then-President George W. Bush. The appointments were made during a series of dramatic national events that included one of the most destructive hurricanes in history (Katrina) and the sudden death of a chief justice (William Rehnquist). Since then, Roberts and Alito have transformed the modern Supreme Court. Chief Justice Roberts led the bench on a rightward path, bolstering presidential powers and diminishing individual rights. Alito is likely best known for writing the court's 2022 opinion that reversed Roe v. Wade and ended nearly half a century of abortion rights. Signing onto that opinion were Thomas and the three Trump appointees from his first term: Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett. At the recent Georgetown Law event, Roberts recalled his 2003 confirmation to a US appellate court and the 2005 high-court elevation, but not before he reminded Dean William Treanor of a 1992 episode. Then-President George H.W. Bush had nominated him to the US appellate court, but Roberts was blocked in the Senate. 'Some guy named Biden said, 'Nah, let's not give him a hearing,'' Roberts said, with a touch of the lingering sting. Joe Biden, who would later become president, was chairman of the Senate Judiciary Committee at the time. In his public appearances, Roberts typically skips over that disappointment at age 37. But he used it last week as a lesson for the Georgetown students nearing graduation. 'Looking back on it – this is in terms of advice – you want your bad luck to be good,' Roberts said. 'I think if I had been confirmed at that early age, when a vacancy came up on the (Supreme) Court, I probably would have had far too much baggage to be considered for it.' As it was, Roberts had a slim record of decisions from only two years on the appellate bench court before his Supreme Court nomination. President George W. Bush's selection of Roberts to be chief justice ultimately led to Bush's choice of Alito for an associate justice post. The sequence of events and shifting nominations of 2005 was triggered by Justice Sandra Day O'Connor's July retirement announcement as the annual session ended. Bush announced that he would nominate Roberts for O'Connor's associate justice seat. But before the Senate could hold its scheduled confirmation hearings for Roberts, Rehnquist died on September 3 and created a new opening. Bush, struggling with the federal response to the devastating Hurricane Katrina at the time, quickly decided to switch Roberts to the new vacancy. Once Roberts was confirmed as chief justice, the president decided to replace O'Connor with his White House counsel, Harriet Miers. But Miers, who had little constitutional law experience or record, withdrew her name a few weeks later, after being roundly criticized by conservative leaders, including former US appellate court Judge Robert Bork, who declared her nomination 'a disaster on every level.' Bush then settled on Alito, a federal appellate court judge whose conservative credentials were well-established. In their early years in the Supreme Court, Alito and Roberts, with similar backgrounds and regard for the executive branch, regularly voted together. But in time, Alito moved further to the right, and Roberts, keeping an eye on the institutional standing of the court, tried to stake out the center. Alito has been the subject of much of the speculation since the 2024 election regarding a new Trump opportunity for replace a justice. (Justices typically seek to retire when the sitting president shares their political party and would appoint a likeminded successor.) Yet Alito, and even eldest justice Thomas, are younger than the usual Supreme Court retiree. Of the last dozen justices who left the bench since 1990, most were at least 80 years old. And more than half of the departures over the past 35 years were caused by death or illness. Two of the last four justices to leave the bench died while serving, Antonin Scalia in 2016 and Ruth Bader Ginsburg in 2020. Alito remains an actively engaged, if aggravated jurist. During oral arguments, his questions can be as derisive as they are penetrating. In Thursday's dispute over judge-imposed 'nationwide injunctions' blocking Trump's order to change birthright citizenship, Alito grumbled about those judges on the first rung of the three-tiered US judiciary. 'The practical problem is that there are 680 district court judges, and they are dedicated, and they are scholarly, and I'm not impugning their motives in any way. But, you know, sometimes they're wrong, and all Article III judges are vulnerable to an occupational disease, which is the disease of thinking that I am right, and I can do whatever I want.' Alito contended judges on multimember appellate courts, such as the Supreme Court, are 'restrained by one's colleagues, but the trial judge sitting in the trial judge's courtroom is the monarch of that realm.' With his own colleagues, Alito's regular fuming appears a fact of court life, mainly accepted, sometimes even the source of amusement. During one oral argument session last term, Alito raised a hypothetical scenario that apparently rang too true. 'Let's say I'm complaining about my workplace. It's cold. It's set at 63 degrees. There isn't any coffee machine. The boss is unfriendly. All my co-workers are obnoxious.' Fellow justices begin chuckling. Thomas' laughter was especially hearty. 'I'm not …' Alito interjected, then stopped and declared, 'Any resemblance to any living character is purely, purely accidental.' Alito's more recent remarks about Souter's retreat to privacy recalls how Alito has bristled at public criticism of his rulings and certain off-bench activities. Most recently, he drew scrutiny for taking a call from Trump in early January when a former law clerk was seeking a job in the new administration. They talked just as the high court was about to consider a Trump effort to delay his sentencing in the New York 'hush money' case that dated to Trump's 2016 presidential campaign. Alito said in January that he did not discuss the case with Trump. The bonus of another round of Supreme Court appointments would not be lost on Trump. 'I totally transformed the federal judiciary,' Trump said in 2023 as he was beginning his reelection bid. Referring to his Supreme Court appointments, he added, 'I had three, and they're gold.'
CNN
19-05-2025
- Politics
- CNN
Alito and Roberts take stock as they near their third decade on the bench
As Chief Justice John Roberts and Justice Samuel Alito approach their two-decade milestones on the Supreme Court, they appear to be taking personal stock. Twice in the past two weeks, Roberts, 70, has mused before audiences about retirement. The 75-year-old Alito wrote wistfully about Justice David Souter's early retirement choice. 'I was happy that he was able to spend the last 16 years of his life in the surroundings he cherished living the kind of private life he preferred,' Alito said as the court announced the May 8 death of Souter, who left the bench in 2009 at the relatively young (for a justice) age of 69. Roberts, at a Georgetown University Law Center appearance, recalled the 2009 day that Souter told him he was going to retire. Souter told Roberts he wanted to return to his native New Hampshire, to trade, as Roberts put it, 'white marble for White Mountains.' An avid reader, Souter also sought a more contemplative life. 'There aren't many people who would have that kind of perspective,' Roberts said, 'including myself.' The end of the court's annual session has traditionally been the season for Supreme Court retirement announcements and speculation. Thursday's oral arguments involving Trump's plan to end birthright citizenship marked the final public arguments of the current term; rulings will be issued through the end of June. When CNN asked Alito last week about his own retirement plans, he declined to comment. In November, amid predictions from conservative activists about an impending Alito departure, the Wall Street Journal reported that people close to the justice said he had no plans to leave. Since then, friends of Alito have told CNN his intentions do not appear to have changed. Factors he would weigh, they say, include the usual dynamic of personal health as well as his confidence in who the president might choose as a successor. If Alito, Roberts or Justice Clarence Thomas, who will turn 77 next month, retire in the next four years, it would give President Donald Trump an opportunity to seal a deeper generational legacy on the Supreme Court. At an appearance in Buffalo, New York, this month, Roberts dismissed questions about any imminent retirement but also referred to natural concerns an older justice has of becoming 'a burden to the court.' US District Judge Lawrence Vilardo, a friend of Roberts' from their shared time at Harvard Law School, began the exchange by asking the chief justice, also a Buffalo native, if he ever thought about retiring. 'No,' Roberts said firmly. 'I'm going out feet first.' But then Roberts acknowledged that 'if your health declines at all … if you recognize that you're a burden to the court,' the answer could be different. (Roberts was hospitalized in 2020 after falling at a country club near his home. He had previously experienced seizures, and a court spokeswoman said at the time that his doctors ruled out seizure as the cause of the fall and a forehead injury.) Roberts, who has looked healthy at recent public appearances, related to Vilardo a precautionary step he'd taken to avoid staying on the bench if he lost his faculties. 'I have very good friends,' he said, 'and I sat down with them, and said, I want at the appropriate time – because you don't always notice that you're slipping – I want the two of you to tell me that it's time to go.' Roberts then quipped that there was a long pause, 'and the two of them at once said, 'It's time.'' Responding to a question about whether he enjoys the job, Roberts said, 'It's exciting to get up every morning and go into work.' Roberts and Alito were selected in 2005 within a few months of each other by then-President George W. Bush. The appointments were made during a series of dramatic national events that included one of the most destructive hurricanes in history (Katrina) and the sudden death of a chief justice (William Rehnquist). Since then, Roberts and Alito have transformed the modern Supreme Court. Chief Justice Roberts led the bench on a rightward path, bolstering presidential powers and diminishing individual rights. Alito is likely best known for writing the court's 2022 opinion that reversed Roe v. Wade and ended nearly half a century of abortion rights. Signing onto that opinion were Thomas and the three Trump appointees from his first term: Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett. At the recent Georgetown Law event, Roberts recalled his 2003 confirmation to a US appellate court and the 2005 high-court elevation, but not before he reminded Dean William Treanor of a 1992 episode. Then-President George H.W. Bush had nominated him to the US appellate court, but Roberts was blocked in the Senate. 'Some guy named Biden said, 'Nah, let's not give him a hearing,'' Roberts said, with a touch of the lingering sting. Joe Biden, who would later become president, was chairman of the Senate Judiciary Committee at the time. In his public appearances, Roberts typically skips over that disappointment at age 37. But he used it last week as a lesson for the Georgetown students nearing graduation. 'Looking back on it – this is in terms of advice – you want your bad luck to be good,' Roberts said. 'I think if I had been confirmed at that early age, when a vacancy came up on the (Supreme) Court, I probably would have had far too much baggage to be considered for it.' As it was, Roberts had a slim record of decisions from only two years on the appellate bench court before his Supreme Court nomination. President George W. Bush's selection of Roberts to be chief justice ultimately led to Bush's choice of Alito for an associate justice post. The sequence of events and shifting nominations of 2005 was triggered by Justice Sandra Day O'Connor's July retirement announcement as the annual session ended. Bush announced that he would nominate Roberts for O'Connor's associate justice seat. But before the Senate could hold its scheduled confirmation hearings for Roberts, Rehnquist died on September 3 and created a new opening. Bush, struggling with the federal response to the devastating Hurricane Katrina at the time, quickly decided to switch Roberts to the new vacancy. Once Roberts was confirmed as chief justice, the president decided to replace O'Connor with his White House counsel, Harriet Miers. But Miers, who had little constitutional law experience or record, withdrew her name a few weeks later, after being roundly criticized by conservative leaders, including former US appellate court Judge Robert Bork, who declared her nomination 'a disaster on every level.' Bush then settled on Alito, a federal appellate court judge whose conservative credentials were well-established. In their early years in the Supreme Court, Alito and Roberts, with similar backgrounds and regard for the executive branch, regularly voted together. But in time, Alito moved further to the right, and Roberts, keeping an eye on the institutional standing of the court, tried to stake out the center. Alito has been the subject of much of the speculation since the 2024 election regarding a new Trump opportunity for replace a justice. (Justices typically seek to retire when the sitting president shares their political party and would appoint a likeminded successor.) Yet Alito, and even eldest justice Thomas, are younger than the usual Supreme Court retiree. Of the last dozen justices who left the bench since 1990, most were at least 80 years old. And more than half of the departures over the past 35 years were caused by death or illness. Two of the last four justices to leave the bench died while serving, Antonin Scalia in 2016 and Ruth Bader Ginsburg in 2020. Alito remains an actively engaged, if aggravated jurist. During oral arguments, his questions can be as derisive as they are penetrating. In Thursday's dispute over judge-imposed 'nationwide injunctions' blocking Trump's order to change birthright citizenship, Alito grumbled about those judges on the first rung of the three-tiered US judiciary. 'The practical problem is that there are 680 district court judges, and they are dedicated, and they are scholarly, and I'm not impugning their motives in any way. But, you know, sometimes they're wrong, and all Article III judges are vulnerable to an occupational disease, which is the disease of thinking that I am right, and I can do whatever I want.' Alito contended judges on multimember appellate courts, such as the Supreme Court, are 'restrained by one's colleagues, but the trial judge sitting in the trial judge's courtroom is the monarch of that realm.' With his own colleagues, Alito's regular fuming appears a fact of court life, mainly accepted, sometimes even the source of amusement. During one oral argument session last term, Alito raised a hypothetical scenario that apparently rang too true. 'Let's say I'm complaining about my workplace. It's cold. It's set at 63 degrees. There isn't any coffee machine. The boss is unfriendly. All my co-workers are obnoxious.' Fellow justices begin chuckling. Thomas' laughter was especially hearty. 'I'm not …' Alito interjected, then stopped and declared, 'Any resemblance to any living character is purely, purely accidental.' Alito's more recent remarks about Souter's retreat to privacy recalls how Alito has bristled at public criticism of his rulings and certain off-bench activities. Most recently, he drew scrutiny for taking a call from Trump in early January when a former law clerk was seeking a job in the new administration. They talked just as the high court was about to consider a Trump effort to delay his sentencing in the New York 'hush money' case that dated to Trump's 2016 presidential campaign. Alito said in January that he did not discuss the case with Trump. The bonus of another round of Supreme Court appointments would not be lost on Trump. 'I totally transformed the federal judiciary,' Trump said in 2023 as he was beginning his reelection bid. Referring to his Supreme Court appointments, he added, 'I had three, and they're gold.'
Yahoo
16-05-2025
- Politics
- Yahoo
'No more Souters'
One by one, the nine Supreme Court justices paid tribute to David Souter following his passing last week. They praised his decency, his old-fashioned ways, his generosity to law clerks and his deep love of New Hampshire. Yet something important was missing from the statements by the six Republicans and three Democrats who currently hold those seats. No one praised David Souter's political independence, or his freedom from any specific ideology, political, constitutional or otherwise. The respect for his old-fashioned ways referred not to the unblinkered honesty he brought to the law but to his asceticism and simplicity – his devotion to books, New England, the yogurt and apple he ate for lunch every day, core and all. Such honesty, of course, would give away the game. The justices most important, yet difficult, task is remaining straight-faced as they deliver their lines pretending to be umpires, neutral arbiters, or scholarly vessels of the Founders' original intent – anything but robed politicians wearing the red or blue colors of the party that appointed them – for the benefit of an audience that quite rightly no longer buys this elevated hogwash. No, in this moment of conservative judicial ascendancy, carefully strategized by political strategists and ideologues over decades, funded like a political campaign with dark money millions, with the Court now gift-wrapped for the right by generations to come, one must not speak of politics at all. The Court is the pinnacle and provider of Republican political primacy; its legitimacy requires the public to believe delusions about impartiality while the justices act politically. It is a sign of hope that majorities of Americans do not. Indeed, tucked behind the justices' careful praise of Souter's life lies perhaps his greatest contribution. David Souter stripped aside the well-maintained fiction that justices are appointed to the Court for their erudition, their intellect, their learnedness, and their reason. No, they are appointed to deliver political outcomes while maintaining a robed veneer, after proving their political trustworthiness to partisan judicial gatekeepers. What these justices would never dare say is that they sit on the court today because they mastered a game that David Souter would not play. They are the lessons that the movement learned from a conservative appointment that the movement did not know and could not trust. It lives in the very mission statement of those who placed them there, court whisperers such as Leonard Leo, and like-minded right-wing watchdogs, career makers and enforcers within the Federalist Society and the conservative legal movement, all of whom vowed that there would be 'No More Souters.' The right's pledge that there would be 'No More Souters' had clear meaning and deep consequences. It meant that conservatives would never again countenance a lifetime Supreme Court appointment to any ideological wildcard. Souter, appointed by President George H.W. Bush in 1990, was vouched for by Sen. Warren Rudman and quickly nominated to an unexpected opening created by the retirement of liberal justice William Brennan. But he lacked a paper trail, or a history with the conservative Federalist Society or Ronald Reagan's Department of Justice, which served as proving grounds for the rising generation of Republican lawyers. This would not happen again. Conservatives set about undoing the legacy of the progressive Warren Court of the 1960s by mastering the process of judicial appointments. The Federalist Society began grooming young law students for future roles. Others like John Roberts and Samuel Alito were nurtured in the Reagan DOJ. But GOP presidents kept misfiring on court appointments. Gerald Ford named John Paul Stevens, who would later lead the liberal wing. Reagan nominated centrist-minded Sandra Day O'Connor and Anthony Kennedy. Now here was Bush with another unknown moderate. Insufficiently conservative court appointees had set conservative policy goals on abortion, the regulatory state, campaign finance, guns and more for parts of three decades. After Souter, this would no longer be tolerated. Future appointees would be known, deeply and intimately known. The Federalist Society would be the lead vehicle. One of its executives, Leonard Leo, took on the task of getting to know these future appointees better than anyone else. The message went out to all hopefuls: Mastering this game would offer the possibility of a lifetime appointment to the high court. Proven ideological reliability, demonstrated over decades, paved the career path for this entire court, but particularly the six Republicans, who aced auditions judged by Federalist Society elders, sent unmistakable ideological signals on cases and doctrines that meant most to the conservative legal movement, or pledged fealty through partisan legal work on cases such as Bush v Gore. No David Souter – who nearly resigned in agony over the court's nakedly partisan interference to decide the 2000 presidential election, who would not countenance the push by John Roberts and the conservative wing to dishonestly undo campaign finance precedent in Citizens United – would be allowed near a lifetime appointment again. Republican presidents got the memo as well. When George W. Bush nominated his friend and White House counsel Harriet Miers for the high court in 2005, the conservative legal movement pushed back hard and forced her to withdraw from consideration. The Federal Society apparatchiks who controlled advancement didn't know her. They didn't trust her. And they would not approve her for life. The appointment went to someone very well known by the right: Samuel Alito. 'I had always been a big Samuel Alito fan,' Leo told the New Yorker, and you can almost imagine the kingmaker saying it with a big wink. When Donald Trump, the next GOP president, took office, he, too, had to be vetted by Leo; Trump agreed to select future Supreme Court nominees from a list pre-selected by Leo and others. Trump's White House counsel would joke about this at a Federalist Society gala: Trump hadn't outsourced judicial appointments to them, he cracked: 'Frankly, it seems like it's been in-sourced.' These days, the truth is that partisans look to ensure the fealty of those they spend millions on, with the zeal of a political campaign, to elevate to the court. Once on the court, the movement spends millions more to surround them with like-minded courtiers, to furnish them with law school sinecures, European vacations over the summer, luxury vacations funded by right-wing super donors and much more. The Court, in turn, has become so predictably partisan that when a single justice departs from the party line on even one case, it becomes headline news. (Academics whose prestige is owed to the Court's might point to 9-0 rulings each year as a sign of comity and the court functioning as a court; this is statistics as lies and damn lies, a game of make-believe for the gullible, the counting of minor technical decisions and not the cases that matter.) This, too, was a game David Souter would not play. When he retired in 2010, he did something none of the current justices are likely to even imagine doing, which in itself gives away the political nature of their game. Souter not only walked away from power he could have held for another 15 years, but he also allowed a president of the party other than the one that selected him to name his replacement. No more Souters? That's much of the reason why we are in this mess today.
