Souter, David H. (1939–) (Update)

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SOUTER, DAVID H. (1939–) (Update)

David Hackett Souter was nominated by President george h. w. bush and confirmed as the 105th Justice of the Supreme Court in 1990. At the time, he was portrayed as the "stealth candidate" because, even though previously serving on the New Hampshire Supreme Court, he was not widely known and did not have a record of publications like that of the 1987 unsuccessful nominee, Judge Robert H. Bork. At his confirmation hearings, though, he expressed respect for precedent, dissociated himself from a jurisprudence of original intent, and acknowledged the "majestic generality" of guarantees like the due process clause.

Although more conservative than the Justice he replaced on the bench, william j. brennan, jr. , Souter does not share the conservative judicial philosophy of Bush's other appointee, Justice clarence thomas. To be sure, in his first couple of years on the Court he voted with conservatives on the rehnquist court, casting the pivotal vote in controversial rulings like rust v. sullivan (1991), which upheld the government's denial of funding for family planning organizations that perform abortions. More recently, he has established a record of voting most frequently (over 80 percent of the time) with Justices john paul stevens, ruth bader ginsburg, and stephen g. breyer. Together, they are most often in dissent in 5–4 decisions. He votes next most often with Justices sandra day o'connor and anthony m. kennedy, and least often with Chief Justice william h. rehnquist and Justices antonin scalia and Thomas.

Souter is a conservative jurist but a conservative in the tradition of the second Justice john marshall harlan. Indeed, he frequently cites that Justice's celebrated dissenting opinion from the dismissal of an appeal for lack of justiciability in poe v. ullman (1961), urging the Court's recognition of a constitutional right of privacy and embracing the concept of substantive due process. Souter thus joined Kennedy and O'Connor in a plurality opinion in planned parenthood v. casey (1992) upholding "the core meaning" of the landmark ruling in roe v. wade (1973), and he wrote the portion of that opinion dealing with the doctrine of stare decisis. He also embraced Harlan's understanding of the protection of the due process clause in his concurring opinions in the 1997 right to die cases, as well as in writing for the Court in County of Sacramento v. Lewis (1998).

Although Souter joined the majority in new york v. united states (1992), he has otherwise dissented from the Rehnquist Court's bare majority rulings on federalism, limiting the legislative power of Congress, and defending states ' rights in united states v. lÓpez (1995), Seminole Tribe of Florida v. Florida (1996), Printz v. United States (1997), and Mack v. United States (1997). He also wrote for the dissenters from the Court's ruling in City of Boerne v. Flores (1997), striking down the religious freedom restoration act (1993).

Souter likewise joined Stevens, Ginsburg, and Breyer in adarand constructors, inc. v. peÑa (1995), dissenting from the Court's invalidation of a federal affirmative action program and overturning of metro broadcasting, inc. v. fcc (1990). So too, he dissented in shaw v. reno (1993) and its progeny, which struck down the creation of majority-minority electoral districts.

At the same time, Souter sided with majorities in extending the scope of the fourteenth amendment equal protection clause in the area of nonracial discrimination. He joined, for example, Ginsburg's opinion for the court in united states v. virginia (1996) holding that a public, all-male military college ran afoul of the Fourteenth Amendment in refusing to admit females. He also joined Kennedy's opinion in romer v. evans (1996), striking down a state constitutional amendment that forbid localities from enacting ordinances outlawing sexual orientation discrimination.

On the rights of the accused and matters of criminal procedure, however, Souter generally sides with conservatives. Still, he wrote an important opinion for a bare majority in Withrow v. Williams (1993), upholding inmates' right to habeas corpus on grounds that police violated their rights under miranda v. arizona (1966) and distinguishing stone v. powell (1976). He also dissented from the Court's rejection of a fourth amendment challenge to random drug testing of student athletes in Vernonia School District 47J v. Acton (1995).

Besides championing the concept of substantive due process against criticisms advanced by Scalia and Thomas, Souter has written notable opinions staunchly defending religious liberty on the one hand, and, on the other, a strict separation of church and state under the first amendment. Besides joining the majority in striking down an ordinance banning "ritual animal sacrifice" in church of the lukumi babalu aye, inc. v. city of hialeah (1993), his concurring opinion sharply disagreed with the Court's analysis of the free exercise clause in employment division, department of human resources of oregon v. smith (1990). With respect to the establishment clause, he vigorously defends the theory of a "high wall of separation." Writing for the majority in board of education of kiryas joel village school district v. grumet (1994), he struck down the creation of a special school district for a religious community. By contrast, he dissented from rulings permitting government aid to religious institutions in, for example, Zobrest v. Catalina Foothills School District (1993), rosenberger v. rector & visitors of the university of virginia (1995), and agostini v. felton (1997).

Souter has established a reputation for thoughtful, well-written opinions that often reexamine the historical basis for and development of constitutional guarantees. Actively engaging in oral arguments from the bench, he possesses the charm and wit of a New Englander. He considers himself "a conservative, from a conservative state" and yet jokes "that he makes his living writing liberal dissents."

David M. O'B rien


Garrow, David J. 1994 Justice Souter Emerges. The New York Times Magazine, Sept. 25, pp. 36–43, 52–55, 64.

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Souter, David H. (1939–) (Update)

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