Monday, May 12, 2025

Part I

---

The Death of Justice David Souter: The Reclusive ‘Stealth Justice’ Dies at 85

Last Thursday, David Souter, former associate justice of the United States Supreme Court died at age 85. Other headline news, including the election of a new Pope dominated the news coverage. But today we need to come back to the Death of Justice Souter and come to understand what this means because Justice Souter turned out to be a key transitional figure in the entire history of the United States Supreme Court, certainly in the modern era, and not for reasons just about anyone had expected. So let’s just consider the great issue of the United States Supreme Court over the course of the 20th century. By the time you get into the early decades of the 20th century, there was an increasing influence coming from the justices who identified as progressives on the court in one way or another.

And so you had the big-name justices like Oliver Wendell Holmes Jr. and others who dominated the court and they were pragmatists of a sort. They were committed to what they called the common law, but that meant that the common law was constantly evolving and sometimes that meant especially well into the 20th century at the expense of the text of the Constitution of the United States. The Supreme Court was in effect moving left, and this became even more pronounced, especially in the 1950s and the 1960s during the time of Chief Justice Earl Warren in particular, but even in what followed, which was the court under Chief Justice Warren Burger, basically you still had a liberal direction on the court. And this meant that what was dominating, and not just on the court but in American law schools, was the idea of a so-called “living constitution.” The claim was that the Constitution was after all a document that goes back to the late 18th century.

You can’t expect to run and to adjudicate a modern nation, not to mention the most powerful nation on earth in a modern age with electricity and cars and air forces and nuclear bombs and all the rest. You can’t expect the actual text of the US Constitution to govern. Rather it is to give basic directions and it is unfolding, and a kind of Hegelian dialectic going back to the German philosopher in which you have the unfolding energy of history, basically taking the shape of a living constitution. Conservative responses to this really began to emerge in the last quarter of the 20th century with those who are arguing, “no, we are a constitutional republic, established as an experiment in ordered liberty and that liberty is ordered by the actual text of the Constitution. The Constitution is not just a symbol of something that is evolving over time. No, it is the law of the land, the supreme law of the land, and it means what it says,” often referred to as “textualism” or “originalism,” a concern for original “strict constructionism.”

We now know that a conservative revolution was brewing sometimes in law schools, yes, with leading law professors, but you also had some leading jurists, some lawyers and judges who were very much involved in helping to define a conservative alternative to the idea of the living constitution, this unfolding constitution in terms of its meaning in a more progressive and liberal direction. This is how you ended up with the Roe v. Wade discission, abortion is not mentioned in the Constitution, so how can a woman’s so-called right to abortion be a basic constitutional right? It is because the justices inserted it there, and what they declared was the development of constitutional liberties. And of course they declared themselves to be the stewards of that development. But a conservative revolution on the court had to be preceded by a conservative revolution in classrooms, in books, in articles, and think tanks in other places where conservative legal theorists, jurists judges, and professors began to frame these arguments.

Well, then you have the election of Ronald Reagan in 1980, the election of Reagan as President of the United States, and it was expected that at that point because by the time you reached 1980, the conservative argument in terms of constitutional interpretation and constitutional obligation, that body of scholarship had been in development for some time. But one of the frustrations of conservatives, even going back to the Reagan years is that it appeared that Republican presidents were presenting candidates who were not so clearly conservative, not so clearly committed to the original meaning and text of the Constitution. So you end up with President Ronald Reagan as his first appointment appointing Sandra Day O’Connor, an Arizona judge who turned out not to be all that conservative. 

And then you fast-forward to Ronald Reagan’s successor in the White House, and that was George H.W. Bush, President Bush, Bush 41 as he’s known, President Bush had an opening with the retirement of William Brennan as a justice of the US Supreme Court. Brennan was an unquestioned liberal, and this was a somewhat surprising announcement. It caught the White House by surprise and the White House then turned around and nominated David Souter, who was then a federal appeals court judge, but had only been so for a matter of months before that he was on the Supreme Court of the state of New Hampshire. Before that, he was the Attorney General of New Hampshire. Nobody outside New Hampshire seemed to even know who he was, but he had a powerful champion, actually two of them. Most importantly, Senator Warren Rudman, Republican senator from New Hampshire, who was a friend of George H.W. Bush and highly encouraged him to appoint David Souter as a supposedly conservative jurist. He would be a conservative addition to the court, and Senator Rudman basically said to President Bush, “Just trust me on this.” At the same time, a former governor of New Hampshire was President George W. Bush’s chief of staff, former Governor John Sununu.

Sununu didn’t know Souter so well, but he backed up the argument that Souter was a so-called stealth candidate, a stealth conservative. He clearly was a judge who was conservative. They promised he had just been overwhelmingly confirmed to the appellate court position. And so at a time when President George H.W. Bush did not want a great deal of political, he thought the safe thing was to nominate the stealth candidate, but the joke turned out to be on conservatives because David Souter turned out to be anything but a conservative. As a matter of fact, in 19 years on the nation’s highest court, David Souter turned out to be not only eccentric, but predictably liberal and devastatingly so in many major decisions. The bottom line in terms of David Souter and the conservative movement is that conservatives began from that point thereafter with a motto, “no more Souters.”

How did this happen? How did President Bush come to appoint a man he thought was a conservative and was recommended to him as a conservative who turned out on the bench not to be conservative at all? Well, number one, it was a lack of knowledge about this particular individual. David Souter was someone who had basically no trace whatsoever. He hadn’t written articles, he hadn’t given speeches, he wasn’t positioned on virtually any of these issues. He was a quiet attorney general, a quiet justice on the New Hampshire Court. He was a quiet for a matter of quiet months, justice on the US Court of Appeals, and then all of a sudden he was a quiet, stealth candidate for the Supreme Court of the United States. No one questioned that he was brilliant. He had graduated from Harvard College as a Rhodes Scholar. He had then gone to study in England.

He came back, went to Harvard Law School. There is no doubt that he was very thoughtful. He never married. He spent a lot of time by himself. He didn’t like modern conveniences such as by the way, electricity. He didn’t like to fly. He drove his car back and forth between Washington and New Hampshire. He tended to work with a fountain pen, not complaining about that, but he tended to work with a fountain pen in natural light until he simply had to turn on electric lights. He was a loner. He didn’t have much of a social life. He did have something of a sense of humor. He was often mistaken for his colleague on the court, and that would be justice Stephen Breyer. They didn’t look exactly the same by any means, but they were similar enough that some people in Washington would confuse the one for the other.

One time in a restaurant, we are told Justice Souter was asked if indeed he was Justice Breyer, deciding that he really didn’t want to go into too much of a conversation. He said, “Yes, I’m Justice Breyer.” And then the man turned around and said, “Well, what is your greatest memory of serving on the Supreme Court?” And Justice Souter said, “Well, that would be the honor of working with my colleague, Justice Souter.” Very wry, very New Hampshire, very American Yankee in terms of the sense of humor. But for conservatives, here’s a big lesson and that is that a conservative disposition and a conservative personality does not necessarily equal a conservative set of commitments, conservative convictions, or a conservative understanding of the US Constitution. As a matter of fact, Ann E. Marimow writing the lead obituary for the Washington Post said this, “His backers in Washington did not realize they were getting someone with a conservative temperament and a dedication to judicial restraint rather than a conservative ideologue.” 

Now, I don’t like all the words there, but let me just tell you, I think that’s a straightforward statement. The most important words there are someone with a “conservative temperament.” This is really important for conservative Christians to think about. You would think, and you would think quite naturally that convictions would indicate to some degree a disposition or a temperament. On the other hand, the disposition or the temperament is no substitute for the convictions. You can have someone who likes traditions, who wants to look like a New Hampshire lawyer, someone who likes things antiquarian. You can have all kinds of conservative habits and conservative signals, but that’s not substitute for conservative conviction and conservative ideas and conservative principles. When it came to the former, and that is the conservative habits, evidently, justice Souter was rich in those when it came to the convictions, very impoverished indeed to the great disappointment of American conservatives.

As a matter of fact, David Souter was on the wrong side in some of the most crucial decisions in recent American history. The Supreme Court case of 1992, known as Planned Parenthood versus Casey, it promised to be the opportunity for the court to reverse the Roe v. Wade decision. The Roe v. Wade decision is the central example of liberal judicial activism. Again, abortion not in the Constitution. The majority of the justices going back to 1973 just declared it to be there. Casey was the grand opportunity to reverse Roe. Instead, a majority of the court sustained the Roe v. Wade decision and a trio of justices appointed by Republicans, Anthony Kennedy, Sandra A. O’Connor, and David Souter wrote the majority opinion that sustained Roe, even as the majority opinion acknowledged that Roe had basically been wrongly decided. Now, pay attention to this. This is absolutely crucial.

You have three Republican-appointed justices who sustained the horrifying abortion decision of Roe v. Wade because they said it was the precedent of the court and needed to be respected. Justice Souter wrote that for the court to reverse Roe v. Wade would appear to be a surrender to political pressure. In other words, he didn’t even argue that it was rightly decided. He simply said, “Given his pragmatic understanding of the constant development of the law, the law had developed in this way. So deal with it. This is now the law.” The joint opinion in which Souter was a participant stated, “For two decades of economic and social developments, people have organized intimate relationships and made choices that define their views of themselves and their places in society in reliance on the availability of abortion in the event that contraception should fail.” The three Republican appointed justices, Souter and Kennedy and O’Connor went on to say, “The ability of women to participate equally in the economic and social life of the nation has been facilitated by their ability to control the reproductive lives.”

Well, there you have it. Conservative in this case was simply defined as a disposition, a personality type. He actually evidently considered it conservative to continue the precedent set by Roe v. Wade. He would’ve considered it un-conservative to have rejected it, but this is where an adequate Christian understanding of conservatism is not a conservatism of personality. It’s not just a conservatism of custom. It is a conservatism of truth. And in this case, the truth of the dignity of every unborn human life was discarded by someone who was described as having a conservative temperament. In this case, that conservative temperament was anything but conservative in substance. Linda Greenhouse writing basically from the left of the New York Times about Justice Souter said that he was, “A judge of basically conservative instincts,” but again, those conservative instincts were not tied to anything which was absolute transcendent, even fixed like the Constitution of the United States of America.

The statements that came after the announcement of Justice Souter’s death were interesting in themselves. One came from one of his former law clerks. Now the dean of the Yale Law School, Heather Gerken, said, “Justice Souter was the Supreme Court’s greatest common law judge. He possessed the humility and humanity necessary to eschew grand generalities and focus on the real problems of real people.” Again, notice the concept of the law embedded in that celebration of justice Souter. But then on the other hand, he had a comment that came from constitutional scholar Joe O. McGinniss, professor at the law school at Northwestern University. He said, “Souter will be known wholly for doing the unexpected by becoming one of the most liberal justices on the court. He leaves no independent jurist, prudential mark, and not a single memorable phrase and an opinion of which he was the acknowledged author.”

Part II

---

‘No More Souters’: Justice Souter’s Appointment Taught Republicans That a Candidate Must Be Conservative in Conviction, Not Just Temperament

I want to go back to what conservatives learned, and in this case, this means Republican presidents and those advising them learned and Republican senators involved in this process. What they learned is indeed there must be no more Souters, and this meant a couple of things. And by the way, this works on both sides of the aisle. The Democrats will not approve any justice to the Supreme Court who is not on the record in favor of abortion. On the other hand, Republicans will not and must not approve or vote to confirm any justice to the United States Supreme Court who does not hold to a pro-life position. Now, behind both of those positions is an entire system of understanding the text and authority, the US Constitution. And so it’s never just about abortion, but Justice Souter’s single-handedly made certain that it’s always now about abortion because it was the stealth candidate who turned out to be such a disappointment to conservatives who made the point emphatically.

Justice Souter may not have offered a memorable phrase on the Supreme Court, famously shy, a loner. He retired after 19 years on the court to go back to New Hampshire where he basically lived a very quiet life, but he did leave an impact on the court and he left an impact on the entire process by which presidents appoint nominees to the US Supreme Court. On both sides, he made very certain that there will be no candidate to the United States Supreme Court who is not well known on these issues. 

But I want to come back to one key issue here just to remember this. Conservative convictions should produce a conservative personality, but a conservative personality does not guarantee conservative principles. That’s where we must look below the surface and get firm commitments as to what those principles are.

Part III

---

Conservatives and Liberals Both Now Show Concern on Transgender Revolution: Major Editorial Boards Agree on Significance of HHS Transgender Procedures Report

Now remember that days ago we discussed the release of a massive report by the US Department of Health and Human Services on transgender medical care for minors, for children, and for teenagers.

The report, it came in at about 400 plus pages, massive documentation. It was very similar to a report that was produced by the British government, this was referred to as the Cass Review given the name of the lead pediatrician in the study. And there in Britain, that review was devastating when it came to the medical establishment and it led to the shutdown of Tavistock, which was the infamous British clinic for the transgender care of adolescents. And it led basically to asking basic questions about whether or not these treatments were in the best interest of young people. And the government came to the conclusion based on the report that there wasn’t sufficient evidence to say that such treatments did genuinely help children and young adults and adolescents. And I think we as Christians would understand this exactly what we would expect, but it’s put in the clinical context of saying there’s not adequate proof that these hormonal treatments, and surgical interventions, and other things genuinely helped.

But nonetheless, it is a good thing that the British government at least put on the breaks in terms of the LGBTQ revolution when it comes to the teen in particular when it comes to children and adolescents. And when President Trump was elected and he took office even in the first week in office in the second term, he made very clear that he was going to make this an issue. He released an executive order on pediatric medical gender transition and the White House entitled it, “Protecting children from chemical and surgical mutilation.” So the president didn’t mince any words there. The president had ordered that HHS should produce this report very early in the administration and it has come now. And what’s really interesting, the reason we’re coming back to it today is because of two responses from two editorial boards, both of these very interesting. The first comes from the editorial board of the Wall Street Journal and the headline is this, “The US catches up on gender Medicine.”

Now, the editorial board of the Wall Street Journal is far more conservative than other major national newspapers in particular the New York Times, not to mention the far less significant USA Today and some other newspapers, the Los Angeles Times, you go down the list. The Wall Street Journal has genuine conservatives on that editorial board as well as others. And it’s a rather predictably conservative editorial project, not always as conservative as we might want it to be, but a genuine alternative and an authoritative alternative to the mainstream liberal press. 

This article, it says it all in the headline, “the US Catches up on Gender Medicine,” catches up with what or with whom? It’s catching up with Britain and catching up with restraint. And so the editors of the Wall Street Journal stated, quote, “Clearly political ideology has infected much US medical practice.” They began that by saying, “Sad to say, no matter the scientific evidence, the HHS report is an antidote.”

And the editorial statement was very clear indicating that the report reveals,  “Deep uncertainty about the purported benefits of medical interventions like puberty blockers, cross-sex hormonal treatments and surgeries.” And then the editors go on to say, “Yet, treatment for gender dysphoria among minors today is characterized [and quoting the report here] ‘by a child-led process in which comprehensive medical health assessments are often minimized,’” So going back and forth between editorial comment and citing the report, the bottom line is they say at, “Last, finally, in this sense, the US has caught up with Britain on the issue of gender medicine.” And so that’s statement coming from the Wall Street Journal editorial board, it’s not all that shocking, but what’s perhaps even more interesting is a statement from the editorial board of the Washington Post. In general terms, a far more liberal editorial project and more liberal paper and editorial board.

The headline on this statement is and I quote, “An HHS Report on Transgender Medical Care Shows, We Need Better Research.” The subhead is interesting, “Good Questions About Transgender Care.” Now let’s just hold on. In a lead statement offered with the article, we read, “The authors of a new HHS report make a case against pediatric gender transition.” Now, the editors of the Washington Post don’t go so far as the editors of the Wall Street Journal. They don’t say the US is just catching up, but they do say that this report raises very legitimate issues, and they make clear that there’s simply not enough evidence on the pro-transgender medical care side to allow those treatments just to go on without check. And that’s exactly where things are right now, at least when it comes to the big medical associations. And it’s where some liberal states are, an increasing number of more conservative states are offering directives that limit these kinds of treatments.

But this is a big issue in the United States. It’s an issue which is going to eventually be adjudicated one way or the other. And it may be different state by state, but it’s hard to imagine the federal government will not eventually come down on one side on this issue definitively. And so what’s really important right now is to understand the Trump administration has accomplished something, and I think even more perhaps than many of us had expected in the sense that the Washington Post Editorial Board says that this report is so significant that at least it demands further research and a bit of concern about whether or not these so-called treatments are actually helping children and young people. Now, that’s not earth-shattering in the sense of the paper being where we would want that editorial board to be, but the fact that they have issued a statement this positive about the Trump administration’s HHS report, that’s fairly shocking. Now, I want to offer another observation here.

I’m not impugning the motives of the editorial board of the Washington Post. I am simply saying that given the turn on this issue in terms of the evidence, not just in terms of public opinion but in terms of the evidence, given the fact that you can see an avalanche of cases coming in which children and teenagers who had been the recipients of these treatments come back and say, “Not only did they not help but they caused horrifying harm.” You can see where some of the influencers in our society who even just a few years ago may have been entirely on the side of supporting these treatments, are now coming back to say, “There is at least enough documented research to indicate we ought to put the brakes on and at least demand further research before these issues go forward.” I think that in itself, in worldview perspective, is just incredibly interesting. It is not insignificant if all that’s going on here, if you want to put it that way. All that’s going on here is say, an editorial board wanting to hedge its bets, wanting to offer a word of caution, wanting at least a statement on the record in the case in the future. This turns out to be a very conclusive judgment on society, a very conclusive judgment against these treatments. We can hope for that. Whether that’s all there is or not, it is significant. 

No doubt there will be more to this story and it’s going to be very interesting, even just in the coming days, maybe even in this week, to see the responses to this editorial. I think there will be some on the Left who are going to respond with howls and shrieks. Remember that the ideologues of the sexual revolution and that includes the T in LGBTQ were quite certain that nothing could slow them down. And that when their victory was absolutely settled and assured just a matter of time and they thought that time would be brief, well, the verdict is still out on whether or not they win in the culture, let’s be honest about that.

But at the very least, some breaks are being put on and for all kinds of reasons, we should see that as a very important sign. Something we welcome. We’re not satisfied just with some breaks being put on. We want sanity to be fully returned. We want children and teenagers to be genuinely protected. But in a situation like this, two editorial board statements like these turn out to be very important. And in that sense, not to be missed. No doubt, a fascinating week ahead.