May 4, 2009
By Robert Alt
Following Justice David Souter's retirement announcement,
pundits of all stripes came to a common conclusion: it just doesn't
matter. Given Souter's reputation for voting with the liberal block
on the Court, many believe that the vacancy created by his
retirement produced a zero-sum game - one in which one liberal
voice on the court would be replaced with another liberal
But such thinking is too simplistic. Justice Souter's record
demonstrates that he was a swing vote - sometimes the decisive
fifth vote - in numerous important cases. There is therefore a
genuine risk that the center-left Justice Souter could be replaced
with a far-left Obama nominee.
While Justice Souter disappointed conservatives who hoped for a
justice who would adhere to originalism - that is, a justice who
would apply the laws and Constitution according to their plain and
original meaning rather than according to policy preferences or the
elite opinion of the day - he nonetheless eschewed the excesses of
judicial activism in favor of the demands of rule of law in
numerous cases touching issues like lawsuit abuse and criminal
In the area of lawsuit abuse, Justice Souter provided the fifth
vote just last term in a majority opinion in the Exxon case, which
limited excessive punitive damages under maritime common law.
Punitive damages are a favorite weapon of trial lawyers, who
greeted Souters opinion with some disdain.
Another blow to the trial lawyers came in a Souter decision
authored in 2007, in which he again cast the decisive fifth vote in
an antitrust case holding that a plaintiff initiating a lawsuit
can't make a naked accusation but must lay forth facts that "raise
a reasonable expectation" that he has a right to relief. This
struck a major blow against trial lawyer suits amounting to fishing
expeditions, in which lawyers bring a lawsuit without any factual
basis, and then rely on the liberal rules of discovery to force a
settlement to avoid pre-trial and trial costs.
In the area of criminal law, Souter has departed from the views
of his more liberal brethren in numerous cases. For example, in
Arizona v. Fulminante, Souter again cast the decisive fifth vote,
finding that appeals courts need not throw out every conviction
where an involuntary confession is admitted, but should consider
whether there was more than enough other evidence presented to the
jury to allow a reasonable person to conclude that the accused was
guilty even in the absence of the confession. This principle, known
as harmless error, is generally applied in criminal law, and
prevents those who are clearly guilty from being freed due to law
enforcement errors - an unremarkable proposition that nonetheless
generated a 5-4 vote.
Additionally, Souter has shown reasonable deference to the
police, holding that the Constitution does not prevent a police
officer from ramming his patrol vehicle into the car of a fleeing
suspect to put an end to a dangerous high-speed car chase.
Surprisingly, Justice Stevens in dissent was willing to second
guess the judgment of the police based upon his viewing of a chase
video, and his own assessment of risk to bystanders.
Souter has also shown some restraint in the context of the
Eighth Amendment, joining an opinion holding that the sentence of
life without the possibility of parole for possession of a large
quantity of cocaine did not violate the Cruel and Unusual
Punishments Clause - and prudently recognized the basic principle
that judges should generally defer to legislatures' determinations
of the appropriate punishment for a criminal offence. He provided
the fifth vote for the position that the Fourth Amendment does not
restrict a warrantless arrest for minor misdemeanor violations.
These are but a few of the cases in which Souter departed from
the activist positions of his colleagues, and often did so as the
Given these cases, President Obama's statements on Friday about
the kind of judge he is seeking are all the more disturbing. In
discussing how he would choose a judge, he returned to his favored
refrain, promoting "understanding and identifying what people's
hopes and struggles [are] as an essential ingredient for arriving
at just decisions and outcomes . . ."; These words suggest a
drastic change in the courts - one in which lady justice is
stripped of her blindfold in order to choose winners and losers not
based on what the law requires, but based on how she feels about
the parties before her. This is a recipe not for a center-left
jurist, but for a far-left judge ready to do the bidding of hard
line liberals, not just on social issues like gay marriage, but on
issues of crime and punishment and trial abuse.
Obama should seek judges who will apply the law as it was
written, not how they would like it to be written to address the
particular parties before them. To do otherwise in replacing Souter
will surely shift the Court further to the left, and further away
from the rule of law.
Alt is a senior legal fellow and deputy director of the
Center for legal and Judicial Studies at The Heritage Foundation
First Appeared in New York Post
Following Justice David Souter's retirement announcement, pundits of all stripes came to a common conclusion: it just doesn't matter. Given Souter's reputation for voting with the liberal block on the Court, many believe that the vacancy created by his retirement produced a zero-sum game - one in which one liberal voice on the court would be replaced with another liberal voice.
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