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Bar News - November 18, 2005

Native Son, National Figure


David Hackett Souter:  Traditional Republican on the Rehnquist Court
by Tinsley E. Yarborough. 


Sometime in late fall of last year, I had the misfortune of clumsily turning a corner on the fourth floor of the federal courthouse in Concord, and nearly steamrolling Justice David Hackett Souter.  For those interested, among the perquisites (and potentially near career-ending pitfalls) of landing a clerkship in the Federal District of New Hampshire is the chance to spend a year haunting the very halls favored by our state’s own United States Supreme Court Justice.  But buyers beware: no lawyer should begin his career having hospitalized our state’s most distinguished member of the bar.


Likewise, no New Hampshire lawyer with any time to spare should waste a second thinking about whether to snatch up Professor Tinsley E. Yarbrough’s recent biography of the man.  Few books of national circulation contain as much detail about New Hampshire and its legal establishment as does this one.  Among the familiar figures that appear throughout are US Senators Warren Rudman and Gordon Humphrey; NH Governors Meldrim Thomson and Steven Merrill; Federal Judges Hugh Bownes and Stephen McAuliffe; state Supreme Court Justices Stephen Thayer, Charles Douglas, David Brock and James Duggan; and a cast of members of the New Hampshire Bar that include former Attorney General Tom Rath, attorney Ronald Snow, partner at Orr & Reno, attorneys Wilbur Glahn and Bruce Felmly, both partners at McLane, Graf & Raulerson, and attorneys Mark Sisti and Paul Twomey of Sisti & Twomey.


This book is more than a list of names and associated dates, however.  It is the tale of a complicated and often-misunderstood man who is as reviled in some circles1 as he is revered by his friends and colleagues, and who, in the end, is inescapably the product of our small, tradition-bound state.  It is also an homage to the personal characteristics of dedication and discipline, of which Justice Souter, by Yarbrough’s account, is a paragon.


Souter in New Hampshire


Of particular interest to members of the bar will be Yarbrough’s first 90 pages.  In a comprehensive fashion, the author describes Souter’s ten-year ascendance from Assistant Attorney General, to the position of Attorney General itself, and ultimately to seats on our state’s Superior and Supreme Courts.  There are nice, but tastefully short chapters in this section on Justice Souter’s personal life, sections which readers should enjoy for the familiar references to places and faces we all know, and for the manner in which the account avoids descending into speculation and prurient gossip. 


The real meat of the story, however, begins on page 38, when Yarbrough addresses Souter’s relationship as Attorney General with Governor Meldrim Thomson.  Notoriously conservative,2 Thomson’s at-times flailing ideological aggressiveness serves as a narrative foil to Souter’s measured thoughtfulness, and nicely foreshadows Souter’s relationship with his Supreme Court colleague, Justice Antonin Scalia.  From the outset, Thomson and Souter squared off on state gambling, which Thomson supported and Souter did not, and on how to approach the activation of the Seabrook power plant, for which Thomson pushed hard in the face of Souter’s concern that the state lacked an adequate evacuation plan in case of a meltdown.


Most interesting, however, was Souter’s navigation of issues regarding state encroachment on civil liberties.  Souter’s office opposed the imposition of heightened scrutiny under the Equal Protection Clause in gender discrimination cases, supported the prosecution of a Jehovah’s Witness couple who refused to display the Thomson-mandated “Live Free or Die” slogan on their license plates, and supported Thomson’s decision to fly all New Hampshire and U.S. flags at half-mast on Good Friday.  In each case, it is the federal courts of New Hampshire, and especially Federal District-turned-First Circuit Court of Appeals Judge Hugh Bownes, and not the New Hampshire Attorney General’s office, that emerge as the guardians of our civil liberties.  Echoes of Justice Souter’s explanation for this have recently been heard from the Attorney General’s office in defense of its decision to argue Ayotte v. Planned Parenthood to the Supreme Court.  According to Yarbrough, Souter operated under the principle that if the constitutionality of a New Hampshire law is an open question, it is the Attorney General’s duty to defend it to the hilt.


The Theme of Duty 


Not surprisingly, the notion of “duty” is a theme that bleeds into all aspects of Justice Souter’s professional life.  Once Souter ascends to the bench, Yarbrough accentuates this theme by describing cases in which Souter rendered opinions at odds with choices he might have made as a matter of policy.  In one case, Yarbrough reprints a heartfelt excerpt from one opinion in which Souter rejected the claims of janitors seeking state benefits, yet described them as “responsible and commendable job applicants . . . whose age prevents their acceptance of full-time work.”  In another, Yarbrough recounts a case in which Souter overturned the conviction of a child-rapist because it rested on an improper application of the rape shield law.  Both decisions were likely at odds with Souter’s policy preferences, yet both reveal his dedication to the dictates of his position and to the rule of law.  As Mark Sisti is quoted as saying, “I really, really believe that there are people who take oaths.  And he was absolutely dedicated to filtering facts through the prism of the Constitution.” 


Those familiar with the Souter story as it moves southward to Washington, D.C. and the United States Supreme Court will not be surprised by much of the remainder of the book.3  What should be interesting to the contemporary reader are the parallels that can be drawn between Souter’s nomination and the nomination of Chief Justice John Roberts.  Both candidates had very little federal appellate judging experience, both had the unflinching support of friends and colleagues,4 both fared quite well during the nomination hearings, and both inspired opposition from women’s groups, in Souter’s case, from NARAL and NOW.


As it has turned out, predictions about Souter’s effect on women’s issues were quite inaccurate.  Souter is credited by Yarbrough (among others), for instance, with using the concept of stare decisis (a concept Roberts explained publicly during his nomination hearings perhaps as well as anyone has since Souter in the Casey case) to save the central holding of Roe v. Wade, as well as with a dissenting vote in the Supreme Court’s decision to invalidate the Violence Against Women Act in United States v. Morrison.  Indeed, if Chief Justice Roberts follows Souter’s voting pattern as closely as he did his nomination performance, women’s groups will likely be pleasantly surprised again.


The richness of Yarbrough’s description of Souter’s role in Casey, Morrison and other cases, however, may also be its undoing for non-lawyers.  The final 100-plus pages is a thematic survey of Souter’s opinions and dissents, and serves as a wonderful Supreme Court primer.  Those not interested in doctrine will be bored and prone to skim.  For those who are interested, however, the sections on Souter’s sophisticated approach to sovereign immunity and the Commerce Clause, in particular, will nicely serve to synthesize in modern terms the historic push and pull between the federal government and the states.5


Souter and Scalia


An added bonus to these sections is Yarbrough’s successful and apt juxtaposition of the approaches and personalities of Justices Souter and Scalia.  In Yarbrough’s account, Justice Souter represents a kind of “traditional republicanism” no longer embraced by the mainstream.6  This is contrasted with the approach in ascendance today, which is embodied by the opinions and persona of Justice Scalia.  Whereas Souter tends to respect as legitimate and binding precedent from the New Deal, Warren and Burger Courts, Scalia tends to look past these opinions to sources from the revolutionary and civil war eras for guidance.7  Among other areas, this is evident in their distinctive approaches to interpreting the Establishment Clause.  While Souter has voted to uphold the strict separation between church and state, established most starkly by pre-Rhenquist Court jurisprudence, Scalia has taken a far less separatist position on such questions, hinting, as one Supreme Court opinion once notoriously stated, that we are, and have been from the beginning, if not a “Christian nation" then a religious one.8  Whose view will ultimately prevail has yet to be determined.


These and other debates make this book a dynamic read for any lawyer.  Its placement in a setting familiar to New Hampshire lawyers makes it particularly digestible.  There is of course, more to be written on the subject as his life on and off the bench unfolds.  At least one new chapter will likely be added describing his place on the Roberts court, and maybe another on the developing public reaction to him as he has been on this court.  This information will prove supplementary and is not likely to be helpful until Justice Souter steps down.  For the time being, then, Yarbrough’s account, which succeeds in capturing the core of Justice Souter’s story mid-life, will do just fine. 


David Hackett Souter:  Traditional Republican on the Rehnquist Court, by Tinsley E. Yarborough, Oxford University Press. 



1. The recent attempts to condemn Justice Souter’s family home in Weare, New Hampshire by outraged opponents of the Supreme Court’s Takings Clause decision, Kelo v. New London, attest to this fact.

2. Yarbrough tells us that Thomson, a publishing mogul, was elected Governor in 1972 after having campaigned on the slogan, “Ax the tax,” and that he had run for Congress in 1970 as a candidate from segregationist Alabama Governor George Wallace’s American Party.

3.  Among the noteworthy, yet, under-described elements of this story, is the importance of Souter’s friendship with Senator Rudman.  According to Yarbrough, “but for” Rudman’s support, Souter would not likely have ascended to the Supreme Court.  If Yarbrough were to supplement his account in a follow-up edition, the addition of more information about this unique friendship would fill a small, but important hole in the narrative.

4.  Not to be ignored is Judge McAuliffe’s moving and eloquent expression of support on page 140.

5. Court watchers will be amused to see textualists become atextual to the nth degree when it comes to the Eleventh Amendment Immunity, which, until Alden v. Maine was seen as the states’ primary source of protection against nonconsensual suits for money damages.

6. Those interested in this theme should read Mark Tushnet’s popular disquisition on the subject:  A Court Divided: The Rheqnuist Court and the Future of Constitutional Law.

7. For an exhaustive treatment of Scalia’s approach, one should read A Matter of Interpretation, his book on the subject.  The general disagreement described there and elsewhere is over whether open-ended phrases in the constitution have a set meaning that can be discovered and properly cabined, or whether those phrases were purposely drafted in an open-ended fashion to allow for their adaptation and growth.  While Scalia rejects this latter approach as constitutionally sound, Souter accepts it.  Yarbrough suggest that the similarities between this approach and the case-by-case common law reasoning generally followed by state judges may be one reason why Souter, the one-time state judge, has not gone the way of Scalia.

8. See Holy Trinity Church v. U.S., 143 U.S. 457 (1892).

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