“No more Souters”

One by one, the nine Supreme Court justices paid tribute to David Souter following his passing last week. They praised his decency, his old-fashioned ways, his generosity to law clerks and his deep love of New Hampshire.

Yet something important was missing from the statements by the six Republicans and three Democrats who currently hold those seats. No one praised David Souter’s political independence, or his freedom from any specific ideology, political, constitutional or otherwise. The respect for his old-fashioned ways referred not to the unblinkered honesty he brought to the law but to his asceticism and simplicity – his devotion to books, New England, the yogurt and apple he ate for lunch every day, core and all.

Such honesty, of course, would give away the game. The justices most important, yet difficult, task is remaining straight-faced as they deliver their lines pretending to be umpires, neutral arbiters, or scholarly vessels of the Founders’ original intent – anything but robed politicians wearing the red or blue colors of the party that appointed them – for the benefit of an audience that quite rightly no longer buys this elevated hogwash.

No, in this moment of conservative judicial ascendancy, carefully strategized by political strategists and ideologues over decades, funded like a political campaign with dark money millions, with the Court now gift-wrapped for the right by generations to come, one must not speak of politics at all. The Court is the pinnacle and provider of Republican political primacy; its legitimacy requires the public to believe delusions about impartiality while the justices act politically.

It is a sign of hope that majorities of Americans do not. Indeed, tucked behind the justices' careful praise of Souter’s life lies perhaps his greatest contribution. David Souter stripped aside the well-maintained fiction that justices are appointed to the Court for their erudition, their intellect, their learnedness, and their reason. No, they are appointed to deliver political outcomes while maintaining a robed veneer, after proving their political trustworthiness to partisan judicial gatekeepers.

What these justices would never dare say is that they sit on the court today because they mastered a game that David Souter would not play. They are the lessons that the movement learned from a conservative appointment that the movement did not know and could not trust. It lives in the very mission statement of those who placed them there, court whisperers such as Leonard Leo, and like-minded right-wing watchdogs, career makers and enforcers within the Federalist Society and the conservative legal movement, all of whom vowed that there would be “No More Souters.”

The right’s pledge that there would be “No More Souters” had clear meaning and deep consequences. It meant that conservatives would never again countenance a lifetime Supreme Court appointment to any ideological wildcard. Souter, appointed by President George H.W. Bush in 1990, was vouched for by Sen. Warren Rudman and quickly nominated to an unexpected opening created by the retirement of liberal justice William Brennan. But he lacked a paper trail, or a history with the conservative Federalist Society or Ronald Reagan’s Department of Justice, which served as proving grounds for the rising generation of Republican lawyers.

This would not happen again. Conservatives set about undoing the legacy of the progressive Warren Court of the 1960s by mastering the process of judicial appointments. The Federalist Society began grooming young law students for future roles. Others like John Roberts and Samuel Alito were nurtured in the Reagan DOJ. But GOP presidents kept misfiring on court appointments. Gerald Ford named John Paul Stevens, who would later lead the liberal wing. Reagan nominated centrist-minded Sandra Day O’Connor and Anthony Kennedy. Now here was Bush with another unknown moderate.

Insufficiently conservative court appointees had set conservative policy goals on abortion, the regulatory state, campaign finance, guns and more for parts of three decades. After Souter, this would no longer be tolerated. Future appointees would be known, deeply and intimately known. The Federalist Society would be the lead vehicle. One of its executives, Leonard Leo, took on the task of getting to know these future appointees better than anyone else.

The message went out to all hopefuls: Mastering this game would offer the possibility of a lifetime appointment to the high court. Proven ideological reliability, demonstrated over decades, paved the career path for this entire court, but particularly the six Republicans, who aced auditions judged by Federalist Society elders, sent unmistakable ideological signals on cases and doctrines that meant most to the conservative legal movement, or pledged fealty through partisan legal work on cases such as Bush v Gore.

No David Souter – who nearly resigned in agony over the court’s nakedly partisan interference to decide the 2000 presidential election, who would not countenance the push by John Roberts and the conservative wing to dishonestly undo campaign finance precedent in Citizens United – would be allowed near a lifetime appointment again.

Republican presidents got the memo as well. When George W. Bush nominated his friend and White House counsel Harriet Miers for the high court in 2005, the conservative legal movement pushed back hard and forced her to withdraw from consideration. The Federal Society apparatchiks who controlled advancement didn’t know her. They didn’t trust her. And they would not approve her for life. The appointment went to someone very well known by the right: Samuel Alito. “I had always been a big Samuel Alito fan,” Leo told the New Yorker, and you can almost imagine the kingmaker saying it with a big wink.

When Donald Trump, the next GOP president, took office, he, too, had to be vetted by Leo; Trump agreed to select future Supreme Court nominees from a list pre-selected by Leo and others. Trump’s White House counsel would joke about this at a Federalist Society gala: Trump hadn’t outsourced judicial appointments to them, he cracked: “Frankly, it seems like it’s been in-sourced.”

These days, the truth is that partisans look to ensure the fealty of those they spend millions on, with the zeal of a political campaign, to elevate to the court. Once on the court, the movement spends millions more to surround them with like-minded courtiers, to furnish them with law school sinecures, European vacations over the summer, luxury vacations funded by right-wing super donors and much more. The Court, in turn, has become so predictably partisan that when a single justice departs from the party line on even one case, it becomes headline news. (Academics whose prestige is owed to the Court’s might point to 9-0 rulings each year as a sign of comity and the court functioning as a court; this is statistics as lies and damn lies, a game of make-believe for the gullible, the counting of minor technical decisions and not the cases that matter.)

This, too, was a game David Souter would not play. When he retired in 2010, he did something none of the current justices are likely to even imagine doing, which in itself gives away the political nature of their game. Souter not only walked away from power he could have held for another 15 years, but he also allowed a president of the party other than the one that selected him to name his replacement. No more Souters? That’s much of the reason why we are in this mess today.