Friday, May 1, 2009

David Souter: A Principled Justice

      David Souter will not be remembered as a great or near great justice. He will leave the Supreme Court at the end of his nineteenth term with relatively few landmark majority opinions bearing his name. His dissenting opinions tend to be long in legal prose and footnotes and short in soaring rhetoric or memorable quotes. And many conservative Republicans will of course remember him as a traitor to their cause and to the president who appointed him, George H.W. Bush.
      Souter deserves better. In an era of increasing ideological polarization on the court, he stands out as a judge’s judge: judicious in temperament, rigorous in legal reasoning, faithful to constitutional tradition, and stalwart in defense of the court as a legal instead of a political institution.
      Nothing exemplifies Souter’s belief in the court’s role better than the decision that many conservatives count as an historic betrayal: his critical vote along with Justices Sandra Day O’Connor and Anthony M. Kennedy in 1992 to reaffirm the landmark abortion rights ruling, Roe v. Wade. Souter’s contribution to the jointly authored plurality opinion stressed the danger that a reversal in the face of intense political opposition would cause what he called “profound and unnecessary damage to the Court's legitimacy, and to the Nation's commitment to the rule of law.”
      From various accounts — including that of CNN senior editor Jeffrey Toobin in his book The Nine — Souter believed that the court inflicted that kind of damage on itself with its 2000 decision in Bush v. Gore. According to Toobin, Souter viewed the decision to cut off the Florida vote recount and hand the presidency to George W. Bush as a blatantly partisan act by the five conservative, Republican-appointed justices in the majority.
Toobin wrote that Souter considered resigning — a report disputed by Souter’s original sponsor, New Hampshire’s former Republican senator Warren Rudman. Souter himself has never publicly addressed the report. Indeed, Souter is famously media-averse. He dislikes having his picture taken and vowed that video cameras would be allowed in the Supreme Court’s courtroom only over his dead body.
      Indeed, Souter has been very much the anti-modern justice: using a fountain pen instead of word processor to write his opinions, carrying his apple and yogurt lunch to the office in a plastic bag, and preferring his remote New Hampshire cabin to the social and political life of the nation’s capital.
      Fittingly, Souter’s most distinctive jurisprudential contribution is in fact rooted in history: his strict view of the separation of church and state, whether speaking for a majority or in dissent. In his first important vote on the issue, Souter cast a critical vote (along with Kennedy) to bar even “nondenominational” prayer at high school graduation ceremonies. In his concurrence, Souter carefully reviewed the history of the Establishment Clause to conclude that the Framers intended to bar government support not merely for one particular denomination over another but for religion in general. He then added that reviewing supposedly nondenominational prayers would thrust the courts into “comparative theology” — a task beyond the competence of the federal judiciary.
      A decade later, Souter spoke for the majority in barring religiously-motivated displays of the Ten Commandments in government buildings. In many other cases, however, Souter found himself at odds with the Rehnquist Court’s willingness to permit government aid to religion. And two years ago, he led four dissenters from the Roberts Court’s decision to block taxpayer suits using the Establishment Clause to challenge federal expenditures as improper aid to religious programs or institutions.
      Souter also relied on history to dissent from a second major departure by the Rehnquist Court: the use of state sovereignty principles to limit private suits against state governments for violating federal laws. Dissenting in the 1996 decision that launched the new jurisprudence, Souter argued that the Rehnquist-led majority was misreading the Framers and distorting the court’s own precedents.
      The 1992 abortion decision prompted speculation that O’Connor, Kennedy, and Souter would form a lasting triumvirate in the court’s ideological center. That did not come to pass. Souter moved to the left, while O’Connor and Kennedy reverted to their accustomed positions at the centermost point of a predominantly conservative bench.
      In the succeeding 17 terms, Souter has been a reliable member of a liberal bloc more often than not in dissent in the court’s most important decisions. On the bench, he has used carefully structured questioning to challenge the conservative bloc’s apparent inclinations — for example, in colloquies this week defending the continuing validity of the Voting Rights Act’s key section against the open skepticism from Chief Justice John G. Roberts Jr. and Justice Antonin Scalia.
      Souter has not voted in lockstep, however. He departed from the liberal bloc in writing the 5-4 decision permitting police to make a custodial arrest for a minor traffic arrest and the 5-3 decision striking down the punitive damage award in the Exxon Valdez oil spill.
      The Supreme Court’s legitimacy, Souter wrote in the abortion decision, “depends on making legally principled decisions under circumstances in which their principled character is sufficiently plausible to be accepted by the Nation.” Likewise for a justice’s legitimacy. On that standard, Souter has acquitted himself well: a justice as principled as he was unprepossessing, on the bench or off.


  1. I find it ironic that you use Casey as your opening and closing example of law over politics, or of "principled" and "accepted by the Nation." There's a lot I admire about Souter, and I have no doubt that he is, in his own mind and heart, sincere in his beliefs that (1) Casey was law, not politics, and (2) Bush v. Gore was politics, not law. But, without rehashing the entire Roe debate here, and even assuming that Roe is the "better" view, can you deny that the people who view Roe as "raw judicial power" have a non-frivolous point, even if not the ultimately correct one in your view? Even Roe's defenders, such as Justice Ginsburg, have acknowledged how Roe polarized a nation for decades by short-circuiting the democratic debate. Everyone knows that Roe has poisoned the Court and especially the nomination and confirmation process. Souter -- the "stealth candidate" -- owes his appointment to the Bork breakdown. Casey/Roe is probably is best example of a failure to pass the test you quote: "The Supreme Court’s legitimacy, Souter wrote in the abortion decision, 'depends on making legally principled decisions under circumstances in which their principled character is sufficiently plausible to be accepted by the Nation.'” Much of the nation still does not accept Roe because its "principled character" is not as apparent to all Americans as it is to its fans. In recent years, more and more politically pro-choice thinkers have acknowledged this downside to Roe/Casey as judicial decisions.

    One could argue that Bush v. Gore, for all its flaws, did not have nearly the lasting poisonous effect that Roe did on our judiciary. Bush is gone after 8 years; ROe is pushing 40. I prefer to honor Souter for all he did beyond this case, but would not hold up this case as you do.

    Alternatively, I can see how you could hold up Casey as a result you like, or as protecting an important right against pressure, or some such other approach, but again, not as a case that has enhanced the Court's legitimacy or as something "accepted by the Nation." The facts just don't bear that out.

  2. In response to the first comment, I think there's a significant distinction between a justice's vote on Roe and on Casey, so you can't really speak of a general "downside to Roe/Casey" as a group. In particular, it isn't clear to me that Souter would have actually voted in the majority on Roe were he on the court. His vote for Casey was based in large part on stare decisis, more than it was on any sort of argument that Roe was actually correctly decided. My impression is that Souter is very averse to explicitly overruling precedent in general, which is a legitimate legal position to hold, since stare decisis is a quite important principle, even if not inviolable.

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