Though certainly no originalist, in numerous cases Justice David
Souter has not bought into the worst excesses of judicial activism,
either. In these cases, he has rejected the activist "empathy"
standard promoted by President Barack Obama to instead cast votes
and write opinions that are in accord with the demands of the
Constitution and the rule of law. And particularly in the areas of
crime and punishment and lawsuit abuse, he has broken ranks with
the Court's more liberal wing to do so.
Here is a sampling of some of Justice Souter's most significant
stands in favor of the rule of law:
- Punitive Damages. In Exxon v. Baker (2008),
Souter authored a majority opinion, which was joined by Justices
Roberts, Scalia, Thomas, and Kennedy, explaining that maritime
common law imposes limits on excessive punitive damages. He thus
rejected a lower court ruling that would have required Exxon to pay
billions in punitive damages for the Valdez oil spill in addition
to the money it had already paid out in damages to compensate for
actual injuries, as well as the $2.1 billion it spent on cleanup
efforts. This decision was widely viewed as a major loss for trial
lawyers, who count on excessive punitive damages to justify
bringing otherwise low-damage, often frivolous lawsuits.
- Lawsuit Abuse. In Bell Atlantic v. Twombly
(2007), Souter authored a majority opinion, joined by Justices
Roberts, Scalia, Thomas, and Alito, holding that a plaintiff
initiating a lawsuit must go beyond stating a bare accusation by
laying forth facts that "raise a reasonable expectation" that he
may have a right to relief. This decision, the consequences of
which are still being worked out in the lower courts, was seen as a
major loss for trial lawyers, who frequently initiate lawsuits
without any factual basis and then abuse the discovery process to
conduct fishing expeditions to find some basis to coerce an
expensive settlement.
- Lawsuit Abuse. In Rockwell International Corp. v.
U.S. (2007), Souter joined an opinion by Justice Scalia
limiting the class of individuals who may bring lawsuits against
government contractors under the False Claims Act. The Act allows
third parties to sue on behalf of the government, and potentially
obtain significant money awards, when they have independent
information that a contractor has defrauded the government. The
opinion joined by Souter held that such third parties must possess
"direct and independent knowledge of the information" on which the
actual allegations of fraud are based and may not use the Act to
conduct a lucrative fishing expedition in search of a payout.
- Privacy. In Kyllo v. U.S. (2001), Souter provided
a crucial fifth vote to a majority opinion by Justice Scalia
holding that government agents need a judge-issued warrant,
supported by probable cause, to believe that a crime is being
committed and to use a thermal imaging device to explore details of
a home that would have otherwise been unknowable without physical
intrusion. In this way, the Court preserved the Fourth Amendment's
protections of the home from the threat of modern technologies that
could allow the government to search inside without, as had
historically been necessary, physically entering the home.
- Victims' Rights. In Payne v. Tennessee (1991),
Justice Souter authored an opinion arguing that the Constitution
does not prohibit the consideration of a crime's impact on the
victim and the victim's survivors during the sentencing phase of a
trial.
- Crime. In Virginia v. Moore (2008), Souter joined
a majority opinion by Justice Scalia holding that a drug dealer did
not have to be released from custody because he had initially been
picked up by police for driving with a suspended license, a minor
offense that (according to the dealer) should not have led to the
arrest and search that uncovered his drugs.
- Crime. In Illinois v. McArthur (2001), Souter
joined a majority opinion by Justice Breyer holding that a police
officer, stationed outside a home believed to contain drugs while
his partner obtained a search warrant, did not have to allow a
suspect to enter the home unaccompanied, where he could have
interfered with evidence.
- Crime. In Arizona v. Evans (1995), Souter joined
a majority opinion by Justice Rehnquist holding that a defendant
convicted of drug possession would not have to go free due to a
clerical error that led a police officer to stop and search his
car.
- Crime. In Lockhart v. Fretwell (1993), Souter
joined a majority opinion by Justice Rehnquist holding that a
convicted murderer sentenced to death would not have to be
resentenced or released because his lawyer failed to raise an
objection that would not have changed his conviction or
sentence.
- Crime. In Scott v. Harris (2007), Souter joined a
majority opinion by Justice Scalia 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 that threatens the lives of innocent
bystanders. On the other side, Justice Stevens authored a dissent
stating that he would second-guess the police officer's snap
judgment on the grounds that he saw no "close calls" with
bystanders in a video of the chase.
- Crime. In Harmelin v. Michigan (1991), Souter
joined an opinion by Justice Kennedy holding that the sentence of
life without the possibility of parole for possession of a large
amount of cocaine did not violate the Cruel and Unusual Punishments
Clause and that judges should almost always defer to legislatures'
determinations of the appropriate punishment for a criminal
offense.
- Crime. In Clark v. Arizona (2006), Souter
authored a majority opinion, joined by Justices Roberts, Scalia,
Thomas, and Alito, explaining that the Constitution does not
prevent a state from limiting its insanity defense to the question
of whether the perpetrator lacked the capacity to discern whether
an act was right or wrong, excluding other evidence of his mental
capacity. Had the Court held otherwise and "discovered" a right to
present such evidence in the Due Process Clause, it would have
upset thousands of existing convictions and undermined the ability
of states to put violent criminals behind bars.
- Crime. In County of Riverside v. McLaughlin,
Souter provided the swing vote to a majority opinion holding that
persons placed under arrest may be held for up to 48 hours before a
probable cause determination is made by a magistrate. The
dissenting justices would have required that a probable cause
hearing must be provided "immediately upon completion of the
administrative steps incident to arrest," a standard that would
impose a great burden on law enforcement and risk setting free many
criminals over legal technicalities.
- Crime. In United States v. Banks (2003), Souter
authored a unanimous opinion finding no Fourth Amendment violation
when police bearing a search warrant knocked on the door, announced
their intentions, and waited 20 seconds before battering down the
door when they had reason to believe that evidence was being
destroyed inside the residence.
- Death Penalty. In Stringer v. Black (1992),
Souter authored a dissenting opinion, joined by Justices Scalia and
Thomas, arguing that the majority improperly gave retroactive
effect to its recently minted constitutional rule that state
statutes making the "especially heinous, atrocious or cruel" nature
of a crime an aggravating factor in sentencing violated the Eight
Amendment.
- Death Penalty. In Lankford v. Idaho (1991),
Souter joined a dissenting opinion by Justice Scalia criticizing
the majority for overturning the death sentence of a murderer who
did not have adequate notice that he might be sentenced to death
when at arraignment, months before trial, he had said that he
understood that he might be sentenced to death.
- Abortion. In Rust v. Sullivan (1991), Souter
provided the swing vote to a majority opinion upholding regulations
that prohibit organizations receiving federal family-planning
grants from engaging in counseling concerning, referrals for, and
activities advocating abortion.
- Pornography. In Barnes v. Glen Theatre (1991),
Souter provided the swing vote in a decision upholding the
enforcement of Indiana's public indecency law against a challenge
by establishments wanting to provide totally nude dancing. In a
concurring opinion, Souter wrote that while nude dancing may be
subject to a degree of First Amendment protection, the State's
interest in preventing the secondary effects of adult entertainment
establishments--prostitution, sexual assaults, and other criminal
activity--is sufficient to justify its law against nude
dancing.
- Crime. In Arizona v. Fulminante (1991), Souter
cast a crucial fifth vote in a decision finding that appeals courts
need not throw out every conviction where an involuntary confession
is admitted, but should instead apply harmless-error analysis,
considering 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.
- Crime. In Atwater v. City of Lago Vista (2001),
Souter provided a crucial fifth vote and authored an opinion
holding that the Fourth Amendment to the U.S. Constitution does not
forbid a warrantless arrest for minor misdemeanor violations. This
ruling was a major victory for federalism, reaffirming states'
power to define criminal offenses, procedures, and
punishments.
In nearly all of these cases, more liberal members of the
Supreme Court sought outcomes inconsistent with the Constitution
and the rule of law. That block would find additional strength if
President Obama appoints a liberal activist to the Court to replace
Justice Souter, a center-left moderate, and many cases like those
listed above would have had different outcomes. As a result:
- Violent criminals would be freed for minor blunders by
police,
- Tough sentences for violent crimes would be struck down,
- Trial lawyers would have more opportunities than ever to launch
frivolous, but expensive lawsuits, and
- Victims of crimes would be denied a role in the criminal
justice system.
The bottom line: Justice Souter was no conservative and no
originalist, but replacing him with a far-left activist would
change the balance of the Court for the worse.
Andrew M.
Grossman is Senior Legal Policy Analyst in the Center for Legal
and Judicial Studies at The Heritage Foundation.