The Inconspicuous DHS: The Supreme Court, Celebrity Culture, and Justice David H. Souter

38 Pages Posted: 16 Jul 2020 Last revised: 11 Aug 2020

Date Written: July 14, 2020

Abstract

Thirty years ago this summer President George H.W. Bush nominated Judge David H. Souter to fill the Supreme Court seat from which Justice William Brennan had just announced his retirement. Souter quickly became known as the “stealth nominee”—he had taken no public positions on the controversial issues of the day and lived an unusually disconnected personal life. Liberals were convinced he had given private assurances he would provide the fifth vote to overrule Roe and conservatives hoped that was the case. Those who knew Souter—and Souter himself—claimed he would bring no agenda to the Court. This latter group proved most prescient. Indeed, in just his second term Justice Souter teamed with Justices Kennedy and O’Connor to author a joint opinion in Planned Parenthood of Southeastern Pennsylvania v. Casey, in which they provided the crucial votes to uphold Roe. As a result, “No More Souters” became a conservative refrain. More generally, Souter’s behavior as a justice tracked that of his past. He shunned celebrity and the trappings of life as a justice. Each summer he quickly retreated to his home in New Hampshire in an effort “to make a close approach to solitude.”

This essay provides a brief biographical sketch of Justice Souter (the first of its kind since his retirement), then situates his life and career in light of recent concerns arising out of the celebrity culture that increasingly surrounds the Court and its justices. Souter provides an example that was unique and curious even thirty years ago. His instinctive aversion to the spotlight and general reluctance to engage with the Court’s various public audiences, I contend, helped provide him the space and ability to follow the law wherever it led him, disappointing the results-based expectations of those who supported his appointment but in a larger sense acting in accordance with the ideal of the rule of law. His approach stands in marked contrast to the current justices, who write books, cultivate audiences, and in some cases achieve a level of general celebrity—all of which, as many commentators have suggested, may have pernicious effects on their behavior as justices. In an ideal world, perhaps, the Court would be populated with justices who likewise resist the allure of celebrity. But there likely will be no more Souters, partly because Souters are rare, and partly because contemporary political culture works strongly against their emergence. As a result, second-best solutions, such as the anonymization of opinions, may thus represent the most realistic avenues for reform. Either way, “No More Souters” should thus take on a new meaning, less as mantra and more as lament.

Keywords: Supreme Court, Souter, celebrity,

JEL Classification: K00, K10, K40

Suggested Citation

Oldfather, Chad M., The Inconspicuous DHS: The Supreme Court, Celebrity Culture, and Justice David H. Souter (July 14, 2020). Marquette Law School Legal Studies Paper No. 20-04, Available at SSRN: https://ssrn.com/abstract=3651361 or http://dx.doi.org/10.2139/ssrn.3651361

Chad M. Oldfather (Contact Author)

Marquette University - Law School ( email )

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P.O. Box 1881
Milwaukee, WI 53201
United States
414.288.8031 (Phone)

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