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Obama wants 'independent mind' for Supreme Court; Souter's views proved surprisingly liberal

This article first appeared in the St. Louis Beacon, May 1, 2009 - Justice David H. Souter's decision to leave the U.S. Supreme Court is not likely to change the court's direction. Souter had become a moderate-to-liberal voice during his nearly two decades on the bench and is likely to be replaced by a similarly moderate or liberal justice.

When President George H.W. Bush nominated Souter to the court in 1990 to replace the liberal lion William J. Brennan Jr., it was widely expected that he would become a reliable conservative vote who would help move the court to the right. It didn't happen. The White House referred to him as a "home run" for conservatives. Instead, he turned into a ground-rule double for liberals.

Abortion rights supporters opposed his confirmation, fearing he would become a decisive vote to overturn Roe v. Wade. Gay rights supporters disrupted one of his confirmation hearings and had to be removed from the chamber. But Souter was one of the centrist judges who reaffirmed Roe and he was part of the six-justice majority that threw out state laws criminalizing homosexual sodomy.

When Souter was nominated, some thought he could provide the decisive fifth vote for a broad counterrevolution in constitutional law overturning decisions on abortion, affirmative action and criminal procedure. Others noted that the record of the scholarly, reserved jurist from New Hampshire suggested he was an old-fashioned practitioner of judicial restraint whose adherence to precedent might make him reluctant to overturn settled constitutional doctrines.

The latter part of that prediction turned out to be more accurate. Souter's judicial conservatism and judicial restraint often led him to decisions viewed as politicallly moderate or liberal.

Souter disappointed his backers not only on abortion but also on affirmative action, criminal procedure, federalism, gun rights and the separation between church and state. He suported the University of Michigan law school's affirmative action plan and opposed school prayer and government subsidies to student religious groups.

Last month, Souter wrote the surprising 5-4 decision for the court reaffirming one of the most unpopular criminal procedure decisions of the Earl Warren court - the 1957 Mallory v. U.S. ruling that threw out voluntary confessions made when police waited more than seven hours to take a suspect before a magistrate. In reaffirming that decision, Souter wrote that the Warren court's point was fresh as ever. "The history of liberty has largely been the history of observance of procedural safeguards."

Nor did Souter join Chief Justice William H. Rehnquist's push for more state's rights and less federal power. In those cases and others, Souter seemed to have taken on the self-appointed role of knocking down the historical arguments of the conservative majority.

The Rehnquist block often argued that the Constitution should be true to the views of the Framers. Souter wrote long dissents challenging the historical interpretations that the conservatives had put on the Founding Fathers.

In a 1999 decision, for example, the Rehnquist majority had decided that a citizen could not sue Maine seeking a fair wage under federal law. Such a suit in federal court was a violation of "sovereign immunity," the majority ruled.  But Souter pointed out that many of the Framers thought sovereign immunity was "an obsolete royal prerogative inapplicable to a republic."

Souter was a private man who loved to hike the White Mountains of his native New Hampshire much more than walk the city streets of the nation's capital. A Harvard law graduate and a conservative attorney general of New Hampshire, Souter had gone on to become a justice of the state high court. His opinions were hard to categorize, even hard to decipher.

Souter had worked for former Sen. Warren Rudman, R-N.H., when Rudman was attorney general of New Hampshire. Rudman sold him to John Sununu, Bush's chief of staff; and Sununu sold him to Bush.

Former Sen. Paul Simon, D-Ill., initially was disposed to vote against Souter, but decided after confirmation hearings to support him. Simon concluded that Souter was "genuine" and "had an ability to grow" while on the bench. He told Souter that he hoped the justice would pay attention to the difficulties that ordinary Americans faced. 

During his first term on the U.S. Supreme Court, Souter wrote pedantic opinions and provided the deciding vote for the conservative majority in ten 5-4 decisions, including ones that upheld the federal ban on abortion counseling and state laws prohibiting nude barroom dancing.

But it didn't take Souter as long to migrate toward the middle as it had Justice Harry Blackmun two decades earlier.

Charles Cooper, who had been a top lawyer in the Reagan Justice Department, recalled in 1994 that he had asked "brand-name conservatives" in the Bush White House if they were sure about Souter's conservative credentials. "Just relax, Chuck," they told him.

Two years later, Cooper was having trouble relaxing. Souter had provided the decisive fifth vote against Cooper in an important church-state case in which the court decided to bar prayers at public school graduation ceremonies. Justice Antonin Scalia was visibly seething that morning as the justices announced the decision.

By the 1994 court term, Souter had emerged as a moderate-to-liberal powerhouse. He provided the decisive vote in every close case which the liberal wing of the court won.

The following year, Richard J. Lazarus, then a Washington University law professor, said that Souter had become a liberal "almost in the mold of the man he replaced, William Brennan. ... Souter is thoughtful and takes the conservatives on their own turf, debating the original meaning of the Constitution."

Steven Shapiro, then associate legal director of the American Civil Liberties Union, said at the time that Souter was a welcome counter-weight to the smart conservatives on the court, such as Scalia. "In a court where most of the theorizing has come from the right, it is important that there be an intellectual counterweight. Souter is increasingly playing that role."

Joel Goldstein, a constitutional law professor at Saint Louis University, agrees that Souter has been exemplary, but says he was not as liberal a Brennan.

"Souter has been one of the most thoughtful and reflective members of the court who tried to understand and address issues in their full complexity," Goldstein wrote in an email. "Ultimately, Souter was not as liberal as Brennan -- for example, in Bakke, Brennan argued that remedying societal discrimination was a compelling interest whereas Souter didn't go that far although he was supportive of race conscious programs to promote diversity.

"Thus, even though Souter was part of the 'moderate to liberal' wing of the court he was less liberal than the person he replaced, a phenomenon that has been true of every confirmed justice except one (Ginsburg) for the past 40 years."

In some ways, the use of the terms conservative and liberal don't work for Souter. Charles F. Leahy, Souter's former law partner, pointed out at the time Souter was nominated that "his is judicial conservatism, not political conservatism."

The result of that judicial conservatism showed up in the position he took in Planned Parenthood v. Casey, reaffirming the constitutional right to an abortion. Souter's judicial conservatism led him to favor sticking with precedent, even though that was a politically liberal result.

In 2000, Souter wrote the opinion for the court in an important Missouri case, Nixon v. Shrink, in which the court upheld the strict campaign contribution limits then in effect in Missouri. Souter's opinion was so broad that it seemed to open the door for stringent campaign finance regulation, although the court has moved back the other direction in recent years.

A year later, Souter was reportedly shattered by the overt partisanship of some justices in the Bush v. Gore decision, which led to George W. Bush winning the presidency. Jeffery Toobin wrote in his book "The Nine" that Souter thought he might not be able to continue on the court.

"He came from a tradition where the independence of the judiciary was the foundation of the rule of law," wrote Toobin. "And Souter believed Bush v. Gore mocked that tradition. His colleagues’ actions were so transparently, so crudely partisan that Souter though he might not be able to serve with them anymore."  

Souter was a 19th century man living an almost monastic life a 21st century world. When he was nominated to the court, friends described him as a man who bakes blueberry pies from scratch, loves Bach, collects antiques and reads books about the law for recreation. He hiked to the summit of every 4,000-foot peak in the White Mountains, but liked to be back home with a glass of sherry and in bed by nightfall, an old hiking buddy said.

Souter never married. Before joining the court, he lived alone in the rustic New Hampshire farmhouse where he grew up as the only child of a banker. As a student at Concord High School, he carried a briefcase to school and waited for the bus in the school library. Classmates voted him most sophisticated and most likely to succeed. 

William H. Freivogel, who covered the Supreme Court for the St. Louis Post-Dispatch, is director of the School of Journalism at Southern Illinois University Carbondale. 

William H. Freivogel is director of the School of Journalism at Southern Illinois University Carbondale and a professor at the Paul Simon Public Policy Institute. Previously, he worked for the St. Louis Post-Dispatch for 34 years, serving as assistant Washington Bureau Chief and deputy editorial editor. He covered the U.S. Supreme Court while in Washington. He is a graduate of Kirkwood High School, Stanford University and Washington University Law School. He is a member of the Missouri Bar.

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