Justice Souter on Abortion Rights, Women's Issues Will Be Tough to Top

By Bonnie Erbe, Thomas Jefferson Street blog.

Washington is making much of the pressure on President Obama to appoint a female justice to replace the apparently retiring Justice David H. Souter. I covered the Supreme Court from the late 1980s to the late 1990s and always found Justice Souter to be unassuming, brilliant, and a Central Casting version of a legal nerd—all of which explains his widely reported aversion to the culture of the city where the court sits.

Interestingly, there's probably no progressive female President Obama could appoint who would be a more stalwart supporter of traditional women's rights issues (abortion rights, equal pay) than Souter himself.

On abortion rights, this from a 1995 National Review article describes how Justice Souter disappointed the conservatives who backed his appointment to the court with an important vote on abortion rights:

In one week in July 1992, Souter dispelled the illusions of his former backers by voting to reaffirm Roe (in Casey v. Planned Parenthood) and to prohibit prayer at high-school graduation ceremonies (in Lee v. Weisman). Since then he has voted consistently with the liberal wing of the Court — as, this year, on federalism, term limits, affirmative action, racial gerrymandering, school desegregation, and religion. In cases that split Justices Thomas and Stevens, the right and left poles of the Court, Souter was much more likely to side with Stevens than any other Justice — including Clinton appointees Stephen Breyer and Ruth Bader Ginsburg.

Here are more details on his abortion rights vote, from the New York Times:

A major abortion case, Planned Parenthood v. Casey, arrived at the court in his second term and was argued on April 22, 1992. It was widely expected that Roe would be formally or functionally overturned because by then another abortion rights supporter, Justice Thurgood Marshall, had retired, and he was replaced by Justice Clarence Thomas.

But the result was just the opposite. Justice Souter, joined by two other Republican-appointed justices, Sandra Day O'Connor and Anthony M. Kennedy, who had earlier both expressed strong doubts about Roe, collaborated to produce a highly unusual joint opinion that reaffirmed the constitutional right to abortion. With Justices Harry A. Blackmun and John Paul Stevens joining the central parts of the joint opinion, the vote was 5 to 4.

Even when it came to rank partisan politics, Justice Souter deserted his fellow partisans and followed what he believed the law to be. According to the Times:

Justice Souter was in the minority, and a bitter dissenter, in the case of Bush v. Gore, the 5-to-4 decision that ended the disputed Florida recount in the 2000 presidential election and effectively declared George W. Bush the winner.

And in last year's now-infamous equal pay ruling, Justice Souter deserted the conservative majority on the court and joined Justices Stevens, Ginsburg, and Breyer in the minority to rule that legal technicalities should not have blocked Lilly Ledbetter's equal pay claim against Goodyear Tire & Rubber Co.

And President Obama signed an equal pay law reversing that Supreme Court ruling as one of the first official facts of his administration. Assuming Mr. Obama goes along with the pressure to appoint a female justice to fill the Souter seat, the appointment will unfortunately do little damage to the Roberts-Scalia-Alito-Thomas and yes, Kennedy, anti-women's rights majority on the court.

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