No More Souters - Revisited

May 9, 2025·49 min·3 clips

Alito, Gorsuch, Kavanaugh, and Barrett all used Souter's own 'stare decisis' language at their confirmation hearings — then every one of them voted to overturn Roe.

1. More Perfect profiles Justice David Souter on the occasion of his death, re-releasing a documentary that traces how his tenure on the Supreme Court transformed how the United States selects its justices. 2. NPR political correspondent Ashley Lopez and WNYC host Anna Sale appear to introduce the puzzle of Souter — a man so private and mysterious he became, as Longoria puts it, 'the Beyoncé of the Supreme Court' among legal journalists. 3. The episode's central argument is that Souter's co-authorship of Planned Parenthood v. Casey in 1992 — preserving Roe v. Wade rather than overturning it — set off a chain of events that led directly to the court's current composition and the 2022 Dobbs decision. 4. Souter was nominated by George H.W. Bush in 1990 on the recommendation of chief of staff John Sununu, who says Souter told him privately that he considered abortion 'an abomination' — and that on the basis of that conversation, Sununu told conservative groups the nomination was 'a home run.' 5. The nomination was deliberately designed to avoid the fate of Robert Bork, whose 1987 confirmation hearings became a cautionary tale about what happens when a nominee is transparent about their constitutional philosophy — originalism — and is rejected 58-42. 6. Unlike Bork, Souter did not open with a legal philosophy; he spoke about the people of his hometown of Weare, New Hampshire, and said that 'at the end of our task, some human life is going to be changed in some way by what we do.' 7. When asked about abortion, Souter repeatedly declined to say how he would rule, saying only that it 'would be inappropriate' to discuss a matter that might come before the court — a template that every subsequent nominee would copy. 8. In 1992, with Planned Parenthood v. Casey before the court, Souter was believed by legal observers to be the fifth vote to overturn Roe v. Wade. 9. Former clerk Kermit Roosevelt contextualizes Souter's judicial philosophy with a family story: a New England ancestor who was a town judge during the Salem witch trials refused to let hysteria spread, saying 'there will be none of that here' — which Roosevelt says is exactly how Souter believed courts should function. 10. Souter became close to Justice Harry Blackmun, who had written Roe v. Wade and was also a Republican appointee who had proved less conservative than expected. 11. Souter co-wrote the Casey plurality with O'Connor and Kennedy, all three appointed by Republican presidents; O'Connor announced from the bench: 'We conclude that the central holding of Roe should be reaffirmed.' 12. Sununu says he was told 'you blew it' after the Casey decision and accuses Souter of deliberate deception to secure the nomination; Souter's clerk Peter Rubin says every word of Souter's confirmation testimony was truthful and accurate. 13. The 'No More Souters' rallying cry became a mantra in the Republican Party, meaning future nominees' judicial views would be vetted thoroughly before nomination. 14. In 2005, President George W. Bush nominated Harriet Miers; when conservatives raised objections that she was another stealth candidate, a reporter called her 'Souter in a skirt,' and she withdrew her nomination before her confirmation hearing. 15. Samuel Alito, nominated in Miers' place, adopted Souter's confirmation hearing language — emphasizing stare decisis and refusing to prejudge abortion cases — but went on to write the Dobbs majority opinion overturning Roe. 16. Gorsuch, Kavanaugh, and Barrett followed the same pattern — all using stare decisis language at their hearings, all overturning Roe in Dobbs. 17. Kermit Roosevelt observes: 'Judges after Souter say much the same thing, but he really meant it. And I think that many of the people who came after him didn't.' 18. Souter was reportedly 'shattered' by the Bush v. Gore decision in 2000 because it looked like the justices were behaving as partisans — the thing he most believed should not be part of judging — and this reportedly contributed to his 2009 retirement. 19. Listeners interested in the modern confirmation process, the Federalist Society's influence, or the personal stories of individual justices will find the episode both accessible and substantive. 20. Those who prefer doctrinal legal analysis rather than character-driven narrative will find the episode light on case law and heavy on biography and political history.

As heard by us

A clear account of how David Souter's mystery made Supreme Court nominations feel riskier.

More Perfect uses David Souter's Supreme Court path to explain why an apparently reserved nominee could become a lasting lesson in political risk.

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Why you'd press play

Press play for a portrait of Justice David Souter, the deeply private justice whose legacy changed how people think about Supreme Court picks.

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