Retired Supreme Court Justice David Souter, who was a persuasive voice on the court when it came to environmental cases, died Thursday at his home in New Hampshire. He was 85.
Appointed by former President George H.W. Bush to the nation’s highest court in 1990, Souter became known during his 19 years on the bench as a moderate justice who regularly joined the court’s three more liberal members, often on energy and environmental decisions.
“Justice David Souter served our Court with great distinction for nearly twenty years,” Chief Justice John Roberts said in a statement Friday announcing Souter’s death. “He brought uncommon wisdom and kindness to a lifetime of public service.”
Roberts noted that even after retiring to his “beloved New Hampshire” in 2009, Souter continued to “render significant service to our branch by sitting regularly on the Court of Appeals for the First Circuit for more than a decade. He will be greatly missed.”
Souter leaves behind a wealth of environmental cases, including joining the majority in the landmark 2007 case Massachusetts v. EPA, which opened the door for EPA to regulate carbon dioxide emissions — and which has become a target for conservative interests.
He also wrote a unanimous opinion in Environmental Defense v. Duke Energy Corp., finding that the power company violated the Clean Air Act by modernizing coal-burning power plants without installing better pollution-reduction equipment.
His dedication to the law made him environmental law’s “greatest friend on the Supreme Court,” said Richard Lazarus, an environmental law professor at Harvard University who has represented environmental groups and governments in 40 Supreme Court cases.
Souter did not reflexively vote in favor of the legal position favored by environmental advocates, Lazarus said.
“And of course he shouldn’t have,” Lazarus added. “An outstanding justice’s vote should ultimately turn on the actual merits of the case, which is not the same thing as whether environmentalist advocates favored one side over the other.”
What made Souter, “perhaps more than any other justice in the past 40 years such a wonderful justice for environmental advocates,” Lazarus said, “was that he appreciated the relevance to resolving the merits of a case before the Court of the challenges presented by environmental lawmaking.”
Lazarus said that while other justices tended to react negatively to the disruption of previously settled law that resulted from strengthening environmental law protections, “Souter understood that disruption was entirely legitimate and merely reflected the need for law to evolve over time in response to changing governmental environmental policy and understandings of the working of our natural environment.”
He added that Souter’s departure left environmental interests without a “persuasive voice in environmental cases.”
Former clerks described Souter as modest and — in contrast to the court in more recent years — non-ideological.
As a justice, Souter was “not a politico,” said Bill Araiza, a law professor at the Brooklyn Law School, who clerked for Souter in 1991 and 1992.
“He was not the kind of person who would walk the halls looking for the fifth vote,” he said.
Instead, Souter was more of an academic who followed his own path, Araiza said.
“He’s a justice the likes of which we probably will never see again,” said Kent Greenfield, a law professor at Boston College, who clerked for Souter in 1994 and 1995.
“He was a New England Republican who ended up voting more with the liberal block than the Republican block; it was a testament to the notion that judging doesn’t have to be aligned with a party,” Greenfield said.
A man outdoors
An avid outdoorsman and hiker, Souter had climbed all 48 of the 4,000-footers in New Hampshire, said Greenfield.
“Souter was a real lover of outdoor spaces and couldn’t wait to get back to New Hampshire at the end of each term,” said Greenfield.
“Whenever it was the last day of the court’s hearings, he would literally get in his VW Rabbit, and he would throw some things in the back of the Rabbit, and drive himself from D.C. all the way back to New Hampshire so he could get back to his beloved New Hampshire mountains,” Greenfield said.
When he wasn’t hiking, Souter could be found running in the evenings in the countryside near Concord, New Hampshire, or around Washington during the Supreme Court term.
During his lunch breaks at the court, Souter would read Robert Frost as a respite from his work, Greenfield recalled.
Souter was someone who left a light footprint, said Araiza.
“He was not someone who had a gas guzzler and a McMansion [or] flew in private jets,” he said, crediting Souter’s New England upbringing. “In a world where people, who are as rich as he was, are fine gobbling up resources left and right, he didn’t.”
Mark Jia, an associate law professor at Georgetown University Law Center, who clerked for Souter on the 1st U.S. Circuit Court of Appeals in 2019 to 2020, called the late justice as “a person of great modesty and integrity.”
Greenfield described Souter as having a monumental impact on his professional life.
“I now have a house in New Hampshire, and I climbed all these mountains in part because of his love for them and to model my life on the things that he showed,” Greenfield said.
A legal legacy
A Massachusetts native and Harvard Law School graduate, Souter worked briefly in private practice in Concord, New Hampshire. He later served as New Hampshire attorney general and was appointed to the state’s Supreme Court in 1978 by then-Gov. John Sununu (R).
Sununu, who was then serving as Bush’s chief of staff, recommended Souter to replace Justice William Brennan, who retired in 1990. Bush had already nominated Souter for a seat on the 1st Circuit, and two months after the Senate confirmed him for that position, he was nominated to the top court.
Republicans hoped for a staunch Republican jurist on the bench. Instead, Souter more often landed as a moderate.
That stance came over time, Richard Frank, executive director of the Center for Law, Energy & the Environment at the University of California, Berkeley, said when Souter retired in 2009.
Souter “evolved from a justice with a pro-business philosophy to a solid vote for the environment on the court in his later years,” Frank said.
In a case early in Souter’s term, the majority in 1992 limited the standing of environmental plaintiffs by denying advocacy groups and some of their members the right to challenge an interpretation of the Endangered Species Act.
Souter joined Justice Anthony Kennedy’s concurring opinion in Lujan v. Defenders of Wildlife, in which Kennedy wrote that he would have allowed a broader definition of standing than the late Justice Antonin Scalia, who wrote the majority opinion and was critical of lenient rules of standing for environmental groups.
Lujan was later limited and clarified in Supreme Court decisions that followed, including the 2001 Friends of the Earth v. Laidlaw, in which Souter joined the majority to find that a “reasonable concern” about environmental harm could confer standing.
That ruling is now being challenged by Exxon Mobil, which has asked the court to overturn the landmark decision that upheld the ability of environmentalists to bring citizen lawsuits against polluters. Exxon argued that Laidlaw was wrongly decided and has created a “shakedown racket.”
In the landmark 2007 case Massachusetts v. EPA, the court took Kennedy’s concurring language in Lujan and made it official. Souter joined the 5-4 majority decision in that case.
Also in 2007, Souter wrote the unanimous Environmental Defense v. Duke Energy Corp., finding that the power company violated the Clean Air Act.
The year before, Souter had joined the dissent in a closely followed wetlands regulation case, Rapanos v. United States, in which a 4-1-4 Supreme Court offered a splintered decision on the scope of the Clean Water Act.
“In general, Souter has come to vote strongly in favor of environmental interests, but there were cases where a different justice could have been more strict in enforcing environmental law,” Glenn Sugameli, then-senior counsel for Earthjustice, said at the time of Souter’s retirement.
In the only environmental case of the 2008 term, Souter wrote the majority opinion in Exxon Shipping Co. v. Baker, which sharply cut a $2.5 billion judgment against Exxon Mobil for the 1989 Exxon Valdez oil spill.
Souter found the punitive damages excessive and cut them to $507.7 million, arguing that a 1-1 ratio of punitive to compensatory damages was appropriate in maritime cases.
The ruling, however, did not go entirely the oil giant’s way. Souter, joined by Chief Justice John Roberts and Justices Clarence Thomas, Scalia and Kennedy, rejected multiple arguments from Exxon, including the company’s claim that the Clean Water Act penalties barred punitive damages in such maritime cases.
The court took up five high-profile cases with environmental ties in his last term and observers said he decided in favor of the environment in every instance, except two Superfund cases.
Souter was replaced on the bench by Justice Sonia Sotomayor — President Barack Obama’s first high court nominee and the nation’s first Hispanic and third female justice.
Sotomayor said last year that Souter had offered her advice about working out differences between the justices, telling her that during one point of contention he realized their fellow justices “are as passionate about what they believe about the Constitution, about law, about our country, as I am.”
Even after leaving the bench, Souter continued to hear cases at the circuit court level. Until 2020, he regularly sat on panels of the 1st Circuit in Boston, hearing cases in New England. In 2020, he was on a three-member panel that heard a Native American tribe’s long-running effort to secure sovereign land for a casino in Massachusetts.
Souter and the other justices affirmed a lower court decision, finding that the Obama-era Department of the Interior’s Bureau of Indian Affairs had incorrectly approved the taking of two areas of land into trust for the Mashpee Wampanoag Tribe.
In 2017, he wrote the federal appeals court’s decision when it declined to revive a lawsuit brought by environmentalists challenging modifications of hydropower leases in Maine.
In 2011, Souter was on the federal appeals court panel that ruled against a developer in a dispute over a construction project in Rhode Island that the state halted after a major American Indian archaeological site was uncovered.
Souter kept a low profile after returning home to New Hampshire but joined forces with retired Supreme Court Justice Sandra Day O’Connor, who died in 2023, to promote civic education at a series of public events.
He noted at a 2010 event at the John F. Kennedy Presidential Library that he was involved in an effort to boost teaching on civics in New Hampshire.
He earned an enthusiastic welcome home in 2023 when he became one of two inaugural inductees on the Wall of Fame at his alma mater in the state capital, Concord High School.
Souter, who graduated from the school in 1957, told the audience that one of the best teachers he ever had was at the high school and had conveyed a “rule for life … the obvious need to love what you do.”
