Empty Souter - Supreme Court Justice David Souter

National Review, Sept 11, 1995 by Ramesh Ponnuru

WHEN William Brennan retired from the Supreme Court in 1990, conservatives would have picked someone other than David Souter to replace him. The constitutional views of the Chief Justice of the New Hampshire Supreme Court were largely unknown, and he ran with a bad crowd: his chief Senate sponsor was Warren Rudman (R., N.H.), no friend of judicial conservatives. But the Bush Administration wanted a nominee without the kind of paper trail that had doomed Robert Bork; and Bush felt an affinity for Souter, whom all accounts describe as nice, well-mannered, and thoroughly decent. Most conservatives, presented with a fait accompli and assured by White House Chief of Staff John Sununu that Souter would be ``a home run,' supported the nominee with varying degrees of enthusiasm. His Senate testimony defending an originalist approach to constitutional interpretation led Terry Eastland to predict in these pages that Souter would defend the original meaning of the Constitu-tion and thus probably provide the fifth vote to overrule Roe v. Wade.

It hasn't quite worked out that way. In one week in July 1992, Souter dispelled the illusions of his former backers by voting to reaffirm Roe (in Casey v. Planned Parenthood) and to prohibit prayer at high-school graduation ceremonies (in Lee v. Weisman). Since then he has voted consistently with the liberal wing of the Court -- as, this year, on federalism, term limits, affirmative action, racial gerrymandering, school desegregation, and religion. In cases that split Justices Thomas and Stevens, the right and left poles of the Court, Souter was much more likely to side with Stevens than any other Justice -- including Clinton appointees Stephen Breyer and Ruth Bader Ginsburg.

The Casey decision exemplifies the objectionable tendencies in Souter's style of judging. In their joint opinion, Justices Souter, O'Connor, and Kennedy signaled the Court's willingness to tolerate some restrictions on abortion; but they also gave abortion rights a firmer constitutional anchor than ever before. Abortion rights, it turns out, are part of the ``liberty' mentioned in the Fourteenth Amendment, because ``At the heart of liberty is the right to define one's own concept of existence, of meaning, the universe, and of the mystery of human life.' In other words, as Notre Dame law professor Gerard Bradley explains, ``constructing your own moral universe' is now a constitutional right guaranteed by the Court.

The joint opinion strongly implied that one or more of the three Justices would have voted the other way if not for the Roe precedent. Souter drafted a section explaining that Roe should be upheld both because Americans had come to rely on the ``availability of abortion' in arranging important aspects of their lives and because reversing Roe would appear to be ``a surrender to political pressure. . . . 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 beyond any serious question.' In effect, Souter made the Supreme Court a party to the case it was judging.

People who never used to like judicial restraint are praising Souter's restraint in undoing past liberal activism. But Thomas Jipping, the Free Congress Foundation's Court-watcher, insists, ``It is not judicial restraint to adhere to unconstitutional decisions.' A recent essay by Bradley notes that taking Casey's discussion of precedent seriously would imply a major new claim of judicial power, since even the Warren Court at least claimed to ground its rulings in the 1787 Constitution as amended rather than in previous rulings it recognized as incorrect. But Casey did not really adhere to precedent anyway, as Chief Justice Rehnquist and Justice Scalia wrote at the time: it altered Roe substantially (ditching its trimester framework, for instance) and frankly overruled many subsequent elaborations of it. It's hard to avoid the conclusion that Souter simply contrived the whole analysis to reach the policy result he desired.

Another revealing passage of Souter's section of the decision, however, was almost certainly sincere. In it he explained that when ``the Court decides a case in such a way as to resolve the sort of intensely divisive controversy reflected in Roe,' the Court ``calls the contending sides of a national controversy to end their national division.' Souter wants to unify the country from the bench. It's not a moderate ambition for a jurisprude; but what the task lacks in constitutional mandate it makes up in practical futility. The liberals' Constitution cannot bring the nation together because it always comes down on one side of the ``culture wars' by imposing a controversial conception of unencumbered personhood.

Souter's voting record leads some conservatives to fear that assisted suicide and gay marriage will soon get the Court's protection, in keeping with Casey's rationale. This record leads Princeton legal scholar Robert George to call Souter ``the Blackmun of the Nineties -- the chief judicial exponent of a morally corrupt idea of freedom.' His jurisprudence differs from Warren Court activism mainly in style. Bradley describes Souter's approach as an ``intellectually respectable form of liberal judicial activism . . . only with attention to analytical structure and much more concern for the appearances of the judicial craft than the Warren Court ever gave you.' Souter's written opinions, however, are not distinguished by their eloquence, authority, or originality. His analyses of legal history, particularly in church - state cases, are often slipshod.