Souter: A low-profile justice who frequently dissents

McClatchy NewspapersMay 1, 2009 

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Supreme Court Justice David Souter pictured on Friday, December 5, 2003.

PETE SOUZA — Pete Souza / Chicago Tribune / MCT

WASHINGTON — Supreme Court Justice David Souter is a private public man with a paradoxical track record.

A Republican president, George H.W. Bush, appointed him, but conservatives came to loathe him. He wrote 156 majority opinions and 123 dissents, but few scream out for attention. He's a perfect gentleman during oral argument, but a dog with a bone when he's demanding answers.

"He can sink his teeth into something and not let someone off the hook," said Tom Goldstein, a Washington attorney who's argued multiple cases before the Supreme Court. "He can be incredibly focused."

The 69-year-old Souter, who lives modestly and alone, has had the lowest profile of any current justice. Unlike several others, he doesn't become a globetrotting teacher during the summers, and he's never hidden his discomfort with Washington.

"When the term of court starts, I undergo a sort of annual intellectual lobotomy and it lasts until the following summer, when I sort of cram what I can into the summertime," Souter told an audience at the American Academy of Arts and Sciences in March.

Judicially, too, Souter has been modest. He doesn't adopt the professorial tone of Justice Stephen Breyer, the man-in-the-middle role of Justice Anthony Kennedy or the confrontational brilliance of Justice Antonin Scalia. He admires his fellow New Englander Oliver Wendell Holmes Jr., who was on the court from 1902 to 1932 and about whom he wrote his Harvard College thesis, but he never cultivated Holmes' taste for the memorable aphorism.

"He's a very honest judge, who candidly looks at every case, and comes to a conclusion irrespective of the president who appointed him," said Goodwin Liu, a former Supreme Court clerk who now teaches at the University of California's Berkeley Law School.

In 1992, for instance, conservatives were watching closely as the Supreme Court considered the case called Planned Parenthood v. Casey. Some saw the challenge to Pennsylvania's "informed consent" law as an opportunity to overturn the Roe v. Wade decision that enshrined abortion rights.

Souter, however, joined justices Sandra Day O'Connor and Anthony Kennedy in a so-called plurality opinion that began "liberty finds no refuge in a jurisprudence of doubt," and stressed that the "essential holding" of Roe v. Wade was being upheld. In an unusual twist, the ruling opinion was attributed to all three justices instead of one chief author.

"That was a testament to his ability to find a middle ground," Liu said.

The Casey decision and others like it also testified to the ability of a lifetime-tenured Supreme Court justice to surprise political patrons and opponents alike. In 1990, the group then called the National Abortion Rights Action League declared Souter's nomination part of a "frighteningly successful" campaign to "deprive Americans of their fundamental rights."

By Friday, when reports of Souter's impending retirement began spreading widely, many were singing a different tune.

"He was eminently fair, exceptionally bright and thoughtful, and he refused to carry out a political agenda on the bench," said Nan Aron, the executive director of the liberal advocacy group Alliance for Justice, "and that was a fact that surprised many in the Republican Party."

Put another way, Ed Phelan of the conservative Ethics and Public Policy Center characterized Souter on Friday as "a terrible justice," and Republicans repeatedly have cast him as an ideological turncoat.

Souter defies quick-and-easy stereotyping. A former New Hampshire attorney general, he's often sided with law enforcement on search-and-seizure issues, Aron said. On key business disputes, too, he's periodically sided with the pro-business side.

In June, for instance, Souter wrote the majority opinion in a 5-3 decision that dramatically cut the fine that Exxon-Mobil had to pay for the disastrous 1989 Exxon Valdez oil spill in Alaska. The important decision reduced Exxon's liability from $2.5 billion to about $500 million, and will help curtail future corporate fines as well.

"It is really only in the context of the current court that he's considered a liberal," noted Stanford Law School Professor Pamela Karlan. "I think he's really a classic example of what we've recently seen to be a disappearing species, the Northeast Republican moderate."

In a court dominated by other Republican nominees, Souter often ends up on losing side. Of 48 Supreme Court decisions issued since the current term began, Souter has dissented 15 times. By contrast, Kennedy has dissented only three times so far this term.

Only Justice John Paul Stevens has dissented more frequently than Souter has during this term, records compiled by Scotusblog show.

On Tuesday, for instance, Souter and Stevens joined in dissent on a 5-4 case in which the conservative majority ruled that federal regulators could fine broadcasters for airing a fleeting swear word.

"He'll be remembered for careful and meticulous reasoning," Karlan said, "and he'll be remembered for being in dissent a lot."

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McClatchy Newspapers 2009

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