Retired Supreme Court Justice David Souter, New Hampshire Republican who became a reliable liberal vote, has died

The most prominent — and unlikely — New Hampshire political figure since Daniel Webster and Franklin Pierce, Justice Souter was a whispery-quiet jurist, more contemplative than combative, more comfortable scaling a 4,000-foot peak in his adoptive state than in the more public settings contemporary Supreme Court justices have sought out.

He shunned frippery and pretension. “He wrote clearly for an important reason,” fellow Justice Stephen G. Breyer said in a 2021 interview. “He possessed great common sense.”

Justice Souter’s ascension to the high court, in 1990, ushered in a golden age of New England jurisprudence that has exceeded the 16 years when Oliver Wendell Holmes Jr. and Louis D. Brandeis served on the court together a century ago. Nominated by President George H.W. Bush, Justice Souter was followed on the court by Breyer and Elena Kagan, both of Massachusetts. The result was that for a time all the sitting justices of the Supreme Court were educated in New England.

He was sold to President Bush as a reliable rock-solid conservative. Yet, his positions supporting affirmative action and abortion rights and opposing corporate money in elections would eventually chip away at that assumption.

“His votes in high-profile cases at times disappointed extreme conservatives,” said Martha Minow, a former dean of Harvard Law School who now holds an endowed chair there, “but exemplified the court at its best: capable of understanding competing views, moderating sharp antagonism, and standing for principles of liberty, equality, separation of religion and government, and checks and balances.”

Justice Souter may have examined the most important legal issues of his time, but he shunned what he considered the shallow ephemera of the age. He compensated for a spare appetite for food — lunch ordinarily consisted of an apple and a cup of yogurt, nonfat of course — with a voracious appetite for the printed word, assembling a formidable library in his Weare, N.H., home with contents more inclined to bench reading than beach reading.

His greatest challenge in confirmation hearings before the Senate Judiciary Committee was to convince lawmakers he was not a humorless bibliophile, an idiosyncratic loner unfamiliar with the main currents of modern life, a profile that, in part, helped doom an earlier nominee of a Republican president, Robert H. Bork in 1987.

When Justice Souter was nominated, he owned neither a television nor a credit card. (Shortly after Bush selected him, his friend Thomas D. Rath, a former state attorney general, accompanied Justice Souter to a Concord bank to walk him through the process, familiar to millions of high school seniors but a forbidding prospect to the future jurist, of applying for a Visa gold card. Rath assured the bank official that Justice Souter had good prospects for employment.)

In his confirmation hearings, Justice Souter mollified lawmakers on the right with responses that were respectful but not revelatory; Rath had counseled him there was “a lot less concern about what you think about the Ninth Amendment than about who you are.“

As a judge on state courts, including the New Hampshire Supreme Court, Justice Souter did not encounter, and thus had no judicial record on, the important social issues of the end of the 20th century. That led to the notion, first expressed by Democratic Senator Howell Heflin of Alabama but later appropriated by conservatives enraged at Justice Souter’s positions on the court, that he was a “stealth nominee.”

“Conservative in style and inclination, he moved gradually leftward in his constitutional jurisprudence as he encountered from his seat on the Supreme Court the difficult realities and inequities of life,” said Laurence Tribe of the Harvard Law School.

His votes to uphold affirmative action and certain gun-control measures; to erect a higher wall between church and state; to uphold campaign-finance laws; and to support gay rights prompted liberals to consider him a sentinel of independence.

“Justice Souter proved it is possible to have jurists who consistently strive to put the law above any ideology,” Christopher F. Edley Jr., for a decade the dean of the law school at the University of California Berkeley, said in an interview in 2019 before his death.

But to his critics, Justice Souter was a traitor to the creed he professed. “Conservatives felt betrayed,” said Daniel Urman, a constitutional law specialist at Northeastern University. “He was supposed to be a ‘home run,’ but he actually was a strikeout.“

Subsequently the cry of “no more Souters” solidified the hold groups such as the conservative Federalist Society have over Supreme Court nominations by Republican presidents and liberal groups over nominations by Democratic presidents.

Indeed, Justice Souter’s nomination and its fallout have prompted presidents to examine potential nominees with far more care and have led to the tendency in the White House to select sitting federal appellate judges for the high court and to scorn nominees from state benches, where issues such as gun rights and the separation of powers are generally not at issue.

“In this important regard, Souter was a game-changer,” said Kate Stith, a professor at Yale Law School. “This episode led to the excessive ideological tests for purity that are the regular thing now.”

Born in Melrose on Sept. 17, 1939, but identified with New Hampshire, David Souter was in some ways the mirror opposite of Daniel Webster, born in New Hampshire but a senator from Massachusetts. Webster was verbose, Justice Souter taciturn. Webster craved the public eye, Justice Souter shunned it. Webster slipped from his high personal principles, Justice Souter hewed close to his.

The single child of Joseph Alexander Souter, a banker, and Helen Adams (Hackett) Souter, a store clerk, he was a graduate of both Harvard College and Harvard Law School. He was a Rhodes Scholar at Magdalen College, Oxford. He did not marry. There are no immediate survivors.

The antagonisms Justice Souter’s nomination, and later his profile on the court, spawned were a sharp, deeply affecting break from his earlier life. For decades, he was garlanded with academic honors and embraced both by his home community of Weare and by the rusticated habitues at the Cracker Barrel, a Justice Souter favorite (unrelated to the national chain) that has stood on Main Street in nearby Hopkinton since 1790.

The resignation of William J. Brennan Jr. from the Supreme Court in 1990 changed the life of the court and that of Justice Souter, who had been content with his well-trod routines in central New Hampshire and the rhythms he established for a lifetime of reading and reflection.

But nearly 500 miles away, in the White House, the Bush staff were poring over lists of possible Supreme Court justices it inherited from the Reagan administration. Among those being considered were GOP Senator Orrin G. Hatch of Utah; Clarence Thomas, who would be appointed to the next vacancy; and Kenneth W. Starr, who would later be the independent counselor in the investigation of Bill Clinton that led to the president’s impeachment. Republican Senator Warren B. Rudman added one name to the list: David Souter, who had succeeded him as attorney general in New Hampshire and was appointed to the state Supreme Court by John H. Sununu when he was governor and before becoming the White House chief of staff.

An internal White House memo described Justice Souter as having “strong right-to-life support and experience in the New Hampshire executive and judicial branches.” In a conversation with Sununu after he emerged as a finalist, Justice Souter told his onetime patron he considered abortion “a violent act” — which Sununu wrote in his memoir “left me with the impression that he supported a change in Roe v. Wade.” An endorsement from former governor Meldrim Thomson Jr., one of the most conservative public figures in New England history, helped seal Justice Souter’s nomination.

Then began the most difficult job interview in Justice Souter’s career, his hearings before the Senate Judiciary Committee, followed by the confirmation vote in the Senate.

His confirmation prep team, meeting in seclusion on the shores of Newfound Lake in New Hampshire‘s Grafton County, told him to play down his relationship with Sununu so as not to alarm moderates and liberals in the Senate and then sat him down to watch hours of the confirmation hearings of Bork and Anthony Kennedy. Justice Souter was astonished at the capabilities of a VCR.

“We didn’t want him to be afraid to show who he was,’’ Rudman, who died in 2012, said in an interview in 1990. “He was being portrayed as some kind of a recluse, and we thought he had to show understanding and compassion.’’

On the afternoon before the hearings began, Justice Souter asked to see the Judiciary Committee chambers where he was to be grilled. He stepped inside only to see Democratic Senator Joe Biden, then the committee chairman. Biden told the nominee to relax, try out the seat where he would be testifying, and then told Justice Souter no one on the committee knew more about the law than the nominee did.

In the end, Justice Souter was more sparing with his answers than sparring with lawmakers, providing few hints of how he might judge matters that would come before him. He eventually won confirmation by a 90-9 vote. Both Massachusetts senators, Edward M. Kennedy and John F. Kerry, voted against confirmation.

Justice Souter’s great critical moment in the high-court crucible came early in his tenure with the 1992 case Planned Parenthood v. Casey, which provided jurists with an opportunity to overturn Roe v. Wade. While Justice Anthony Kennedy was the surprise swing vote, Justice Souter, along with Justice Sandra Day O’Connor, played a quiet but vital role helping to sculpt a compromise that preserved the core of Roe while easing the process for states to create their own restrictions.

This stunned and enraged conservatives, but close observers of Justice Souter knew he had longtime ties to the politically potent McLane family of Concord, known for its ardent support of a liberal brand of Republicanism.

It was at the home of Malcolm McLane, a member of the state‘s powerful Executive Council and a mayor of Concord, that Justice Souter had his interview for his Rhodes Scholarship.

Over the years Justice Souter grew close to McLane‘s wife, state Senator Susan McLane, a Republican who later became a Democrat and who was on the national board of the National Abortion Rights Action League — and, along with Justice Souter, was a trustee of Concord Hospital.

“His views on abortion may have been a big mystery to the world — even his close hiking friends didn’t know where he stood — but it wasn’t a mystery to my mother,’’ her daughter, former Democratic representative Annie McLane Kuster said. “She remembered [an abortion] discussion on the hospital board involving David and had a gut feeling he would be OK on abortion.”

Conservatives were not OK with Justice Souter’s views on that subject, nor on affirmative action and the presence of the Ten Commandments in the lobby of a county courthouse in Kentucky — cases for which Justice Souter provided the critical fifth vote against their positions. He courted increased ire for writing the majority opinion in the Kentucky case.

“Over the years, I anguished along with my conservative friends as we watched David Souter become more and more liberal,” Sununu wrote in his memoir. “Souter waited to retire until there was a Democratic president so he could be replaced with a justice as liberal as he was. As I watched Barack Obama replace David Souter with Sonia Sotomayor, I ruefully marveled at how artfully David had demonstrated, all those years ago, how easy it is to deceive by saying next to nothing.”

Justice Souter remained a popular figure in New Hampshire, respected for his probity, discretion, and work ethic; he continued to sit on the First US Court of Appeals in Boston after departing the high court, where he was part of a judicial panel that granted the petition of Whitey Bulger to replace the presiding judge in his case.

Later in his life, Justice Souter warned that ignorance of how government works could undermine American democracy.

“What I worry about is that when problems are not addressed, people will not know who is responsible. And when the problems get bad enough ... some one person will come forward and say, ‘Give me total power and I will solve this problem.’ That is how the Roman republic fell,” he said in a 2012 interview.

A decade after his retirement, he agonized about becoming a joint author on a book on the duties of citizenship — a topic close to his heart and a passion he shared with O’Connor. Even though he was assured the name Donald J. Trump would not appear in the volume, he feared some readers might view the book as subliminal criticism of the 45th and 47th president.

“By intellect and by personal style, he was uniquely suited to the life he led and the bench on which he sat,’’ said Rath, the former state attorney general. “His ability to get along with people was a significant feature of the court of his time. He took that job very seriously, but he never took himself quite that seriously.

“He preferred as often as possible to return to New Hampshire,” said Rath, “and go to the same barber he always went to and to walk the streets he always walked.”

It is on those country roads that his funeral cortege will proceed.

Material from the Associated Press was included in this obituary. A correction has been made to reflect that Senator John F. Kerry voted against the confirmation of David Souter.