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Souter’s First Term


As I mentioned on our recent podcast, I’ve been reading John Paul Stevens’s new memoir — very good, although as you would expect once he leaves Chicago it’s better on legal commentary than when sharing name-dropping anecdotes that don’t necessarily go anyplace. I’ve mentioned that despite his sometime self-presentation he definitely drifted to the left over time. His chapter on the “Souter Court” (his chapter names reflect the old idea that every new justice produces a new Court), however, reminds me that he’s not the only recent Republican nominee for whom that’s true. Indeed, Michael Bailey’s model — which is the cutting edge of making intertemporal comparisons — shows David Souter’s shift to the left as being if anything more sudden and dramatic than Stevens’s:

There’s always the possibility for statistical illusion, of course, but in this case I think a qualitative analysis backs it up. Consider the four big 1991 cases in which Souter provided the 5th vote for a conservative result:

Rust v. Sullivan. Held that the Bush administration could withhold federal funds from medical professionals who even discussed abortion was consistent with the authorizing statute and did not violate the First Amendment.

West Virginia University Hospitals v. Casey One of the anti-plaintiff decisions the Civil Rights Act of 1991 sought with varying success to overrule, it held that fees for expert services could not be shifted to winning plaintiffs. [UPDATE: a commenter reminds me that this one was 6-3.]

Payne v. Tennessee The Court overruled two less-than-five-year-old precedents to permit the use of “victim impact” statements at death penalty sentencing hearings. Stevens calls this one of the worst decisions in the history of the Court. I don’t know if I would go that far, but it’s really bad.

Harmelin v. Michigan Now this decision — upholding a sentence of life without parole for possessing 672 grams of cocaine — I would definitely include on a “worst ever” list. This case exemplifies a classic Kennedy move: theoretically distance yourself from an out-there Scalia and Thomas position (in this case, that the Eighth Amendment does not place any restriction on disproportionate sentences at all), but apply your formally more moderate position in a way as to make any distinction between it and the Scalia/Thomas one trivial.

None of these cases reflected idiosyncrasies that Souter would maintain during the rest of his tenure (he dissented in Ewing v. California, for example.) The data at the time of his confirmation suggested that he would be a conservative in the mold of Kennedy and O’Connor, and at the beginning he was. And then he pretty quickly shifted to being an orthodox liberal, for reasons I don’t fully understand. But it’s one of the lucky breaks the Federalist Society is designed to ensure never happens again.

Incidentally, another decision from a few years later when Souter’s transition to liberalism was pretty much complete that Stevens (correctly) calls one of the worst ever in both its reasoning and impact is Seminole Tribe v. Florida. I think his dissent in that case is Souter’s greatest — a model of careful reasoning that without any Scalia-like histrionics dismembers Rehnquist’s shoddy opinion and doesn’t even leave the widow a corsage.

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