#SCOTUS Audio is working now.
Chief Justice #JohnRoberts opened Thursday’s session with a lengthy tribute to former justice #DavidSouter, who died last
week.
Up first is Solicitor General D. John Sauer, representing the #Trump admin.
As expected he’s arguing the power of the #judiciary to issue nationwide injunctions.
I’ve got four things I want to say about David Souter. #DavidSouter
First, my spouse and I officially became a couple while protesting his nomination.
Second, I argued twice before him (SCOTUS once, once as Senior Circuit Judge). At SCOTUS he was totally practical and got it and gave me a great softball question to make his point through me to Ginsburg (I think). Fortunately, I recognized the softball and cooperated. He voted in the majority. We won 5-4. 
Photo: Jim Cole/Associated Press via "The New York Times"
[Not from the NYT article, still my #DavidSouter ]
#Souter planned his retirement from #SCOTUS to occur during a Democratic presidency as he was keenly aware of Republican designs on turning the court into a political arm.
NPR 2009:
Factors in his decision no doubt include the election of President #Obama, who would be more likely to appoint a successor attuned to the principles Souter has followed as a moderate-to-liberal member of the court's more liberal bloc over the past 2 decades.
In one late June #HabeasCorpus ruling, …3 contentious #Scalia footnotes criticized Souter by name; 3 days later, in one of the term's leading cases, …Scalia in angry dissent dismissed #DavidSouter's majority opinion as "facile" & petulantly invoked Souter's name again & again in criticizing the outcome. Seemingly both provoked & bemused, Souter responded that "Justice Scalia's dissent is certainly the work of a gladiator, but he thrusts at lions of his own imagining."
…the most dramatic 1993-94 evidence of #DavidSouter's increasingly influential intellectual leadership of the Court's 6 mainstream members was the growing number of combative references that #AntoninScalia was directing to him in multiple opinions. #SCOTUS insiders emphasize that in person, the 2 justices "like each other,” …but based upon the written record, there is little doubt that Scalia now realizes…that he has decisively lost the struggle for #intellectual leadership of the Court….
But in the following year, as Kennedy reverted to greater agreement w/the Chief Justice, #Souter found himself on the minority side of far more split decisions.
…The 1992-93 decline of the Souter-O'Connor-Kennedy trio led some observers to highlight how Kennedy had moved back rightward, but Paul Barrett of WSJ contended that actually the "most striking development" was Souter's "emerging #liberal streak."
…[A] close friend, echoing how Casey "wasn't a surprise," especially given "David's respect for #precedent," stressed that people did not appreciate how "David's a #judicial conservative, NOT a #political conservative.”…
Neither the 1992-93 or 1993-94 terms would prove as significant as 1991-92. The most striking statistic of 1991-92, as Casey exemplified, was the degree to which Anthony Kennedy had shifted away from Rehnquist & toward #Souter & O'Connor.
…Casey was the most important case of the 1991-92 term, but there were other impressive Souter successes. He, Kennedy & O'Connor also came together, again joined by Blackmun & Stevens, in a crucial #EstablishmentClause case, Lee v. Weisman, where they struck down the recital of #religious prayers at #PublicSchool graduation ceremonies.
[another noteworthy section is on Souter’s confirmation hearings]
When the Senate #Judiciary Cmte hearing began…Senators & reporters quickly realized that Souter was an impressively erudite nominee.…Amid all the concepts & issues he was asked to address, 2…stand out as most revealing: #liberty & #precedent. …Specifically, Souter stressed that in the #DueProcess clause language of the #5thAmendment & #14thAmendment, "the concept of liberty IS NOT LIMITED BY THE SPECIFIC SUBJECTS.”
Harry Blackmun's concurrence accurately termed the #Souter-O'Connor-Kennedy joint opinion "an act of personal courage & constitutional principle," & Blackmun added that "what has happened today should serve as a model for future Justices & a warning to all who have tried to turn this Court into yet another #political branch."
#Souter closed by reiterating that #Casey, & #Roe, were about far more than simply #abortion:
“A decision to overrule Roe's essential holding under the existing circumstances would address error, if error there was,at the cost of both profound & unnecessary damage to the Court's #legitimacy, & to the Nation's commitment to the rule of #law. It is therefore imperative to adhere to the essence of Roe's original decision, & we do so today."
#DavidSouter #SCOTUS #law #judiciary #Independence #ethics
“But whatever the premises of opposition may be, only the most convincing justification under accepted standards of #precedent could suffice to demonstrate that a later decision overruling the first was anything but a #surrender to #political pressure, & an unjustified repudiation of the principle on which the Court staked its #authority….So to overrule under fire in the absence of the most compelling reason to re-examine a #watershed decision would subvert the Court's #legitimacy…”
#DavidSouter
“But when the Court does act in this way, its decision requires an equally rare precedential force to counter the inevitable efforts to overturn it & to thwart its implementation. Some of those efforts may be mere #unprincipled emotional reactions; others may proceed from principles worthy of profound respect.
“It is the dimension present whenever the Court's interpretation of the #Constitution calls the contending sides of a national controversy to end their national division by accepting a common mandate rooted in the Constitution.
"The Court is not asked to do this very often, having thus addressed the Nation only twice in our lifetime, in the decisions of #Brown & #Roe.
Then #Souter moved to the core of his argument, 2 paragraphs that rank among the most memorable lines ever authored by an American #jurist:
"Where, in the performance of its judicial duties, the Court decides a case in such a way as to resolve the sort of intensely divisive controversy reflected in #Roe & those rare, comparable cases, its decision has a dimension that the resolution of the normal case does not carry.
"For two decades of economic & social developments, people have organized intimate relationships & made choices that define their views of themselves & their places in society, in reliance on the availability of #abortion in the event that contraception should fail. The ability of #women to participate #equally in the economic & social life of the Nation has been facilitated by their ability to control their #reproductive lives,” #DavidSouter wrote.
That background had not been fully understood by the commentators & Senators who had debated what his 1990 nomination meant for the future of #Roe & other fundamental rights. If they had, what was now happening in Casey would not have come as a surprise.
#Souter's analysis reflected a realism not always found in high court pronouncements:
