The announcement today that Associate Justice David Souter was planning to retire from the United States Supreme Court was unlikely to shift the balance of the court on LGBT legal issues. Souter, who was appointed by President George H.W. Bush to the seat vacated by William J. Brennan, Jr., was an unknown quantity on the national scene at the time of his appointment, a former New Hampshire Attorney General and Supreme Court justice who had recently taken a seat on the U.S. Court of Appeals for the 1^st Circuit but had yet to generate a body of appellate decisions on federal constitutional and statutory issues. President Bush had appointed him on the recommendation of New Hampshire Republicans who assured the president he would be a safe, conservative pick.

Souter surprised the Republicans, however, by aligning himself with the moderates on the Supreme Court. On the major LGBT rights cases decided during his time on the Court, he sided with the pro-gay majorities in Romer v. Evans (1996) and Lawrence v. Texas (2003), and wrote a pro-gay dissent in Boy Scouts of America v. Dale (2000). Although he wrote for a unanimous court rejecting a gay organization’s claim to participate in the Boston St. Patrick’s Day Parade under its organizational banner in Hurley v. Gay & Lesbian Irish-American Group of Boston (1995), his opinion was widely hailed as the first by the Supreme Court to exhibit empathy for the gay rights litigants and to use respectful terminology in discussing their legal position. The opinion also acknowledged the political legitimacy of the message that GLIB was seeking to communicate by its participation, while holding that the sponsoring organization of a quintessentially expressive activity such as a parade is entitled to control the content of any message sent by the parade, a holding that can benefit Gay Pride organizers in seeking to exert control over messages sent from their events as well.

It seems unlikely that President Barack Obama would nominate a new justice to the Souter/Brennan seat whose views on LGBT issues – equal protection, due process/privacy, freedom of speech and association – would differ significantly from those of Justice Souter. The LGBT issues most likely to come before the Court over the next few years would include the military "don’t ask, don’t tell" policy if it is not voluntarily altered by the political branches, the constitutionality of the Defense of Marriage Act, also if it is not voluntarily repealed by the political branches, and the routine unequal treatment of LGBT partners by federal agencies. As of May 1, the White House had not yet announced the president’s choice.  Speculation focused on both sitting federal judges and legal academics and government lawyers without judicial experience, including Solicitor General Elena Kagan and former Stanford Dean Katherine Sullivan.  If Sullivan were to be appointed, she would be the first openly-lesbian-or-gay member of the Supreme Court.