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Washington, D.C. WHEN William Brennan retired from the Supreme Court in 1990, conservatives would have picked someone other than David Souter to replace him. The constitutional views of the Chief Justice of the New Hampshire Supreme Court were largely unknown, and he ran with a bad crowd: his chief Senate sponsor was Warren Rudman (R., N.H.), no friend of judicial conservatives. But the Bush Administration wanted a nominee without the kind of paper trail that had doomed Robert Bork; and Bush felt an affinity for Souter, whom all accounts describe as nice, well-mannered, and thoroughly decent. Most conservatives, presented with a fait accompli and assured by White House Chief of Staff John Sununu that Souter would be “a home run,” supported the nominee with varying degrees of enthusiasm. His Senate testimony defending an originalist approach to constitutional interpretation led Terry Eastland to predict in these pages that Souter would defend the original meaning of the Constitution and thus probably provide the fifth vote to overrule Roe v. Wade.

It hasn’t quite worked out that way. 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.

About the Author

Ramesh Ponnuru

Ramesh Ponnuru is the editor of National Review, a columnist for the Washington Post, and a fellow at the American Enterprise Institute.

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Washington, D.C. WHEN William Brennan retired from the Supreme Court in 1990, conservatives would have picked someone other than David Souter to replace him. The constitutional views of the Chief Justice of the New Hampshire Supreme Court were largely unknown, and he ran with a bad crowd: his chief Senate sponsor was Warren Rudman (R., N.H.), no friend of judicial conservatives. But the Bush Administration wanted a nominee without the kind of paper trail that had doomed Robert Bork; and Bush felt an affinity for Souter, whom all accounts describe as nice, well-mannered, and thoroughly decent. Most conservatives, presented with a fait accompli and assured by White House Chief of Staff John Sununu that Souter would be “a home run,” supported the nominee with varying degrees of enthusiasm. His Senate testimony defending an originalist approach to constitutional interpretation led Terry Eastland to predict in these pages that Souter would defend the original meaning of the Constitution and thus probably provide the fifth vote to overrule Roe v. Wade.

It hasn’t quite worked out that way. 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.