“There were times when David Souter thought of Bush v. Gore and wept.”

- Jeffrey Toobin

The United States is richer for David Souter’s nineteen years on the Supreme Court; and poorer for his decision to resign. One cannot blame Souter for his decision to resign. After all, the man has given an extended period of his life serving his country in a critical role, in a city that is not to his liking. That he has played such a critical role in helping pull The Court away from the right-wing radicalism Justices Scalia, Thomas, Roberts and Alito would like to visit on the country has been an enduring gift to all of us.

Souter’s shoes will not be easy to fill. Appointed by the first President Bush and expected to be a conservative voice on The Court, Souter has, instead, shown the one quality one would hope to see in all our judges – a real ability to reach his decisions unfettered by his personal political philosophy. As such, he has often ended up joining the more liberal justices – Brennan, Breyer and Ginsberg – in deciding major cases.

Souter’s decision to resign came as something of a surprise. While he has long contemplated leaving The Court, at the beginning of the current session most observers felt the first to leave would be Ruth Bader Ginsberg due to her being diagnosed with pancreatic cancer between the previous and current court sessions. And, if not Ginsberg, the next expected to retire was John Paul Stevens, who just turned 89.

As I wrote in May of 2008 (The Real Danger of Another Republican President), the possible election of another Republican president posed a real threat to the country precisely because it was the three most liberal Justices who had the potential to resign during the 2009 – 2012 presidential administration. John McCain would almost surely have appointed successors who would have swung The Court farther to the Right than it has been in half a century.

Under a Court composed of five or six ultra-conservative Justices,

• Roe v Wade would almost certainly be doomed.
• Griswold v. Connecticut (1965), the birth control case that led to Roe (and established that there is a constitutional right to privacy), would likely be overturned.
• So, more than likely, would Lawrence v. Texas (2003), the case that struck down sodomy laws.
• Anti-cohabitation laws, prohibiting unmarried adults from living together, would very likely be found constitutional, as well, without the Griswold/Roe/Lawrence precedents.
• Separation of church and state, as we know it, would very likely cease to exist.

The last would mean that states like Utah and Mississippi would impose severe restrictions on personal liberties. Such restrictions would be based on religious faith and undermine the secular nature upon which Western Democracy is built.

Thankfully, we have a President who is almost certain to replace Souter with someone of a like mind, a Justice who will maintain the delicate balance of jurisprudence so vital to our way of life. But no matter who takes Souter’s place on The Court, Souter will be sorely missed for some time.

We are a better Nation for having had the services of David Souter.