Justice David Souter to Retire

     There are news reports that David Souter will step down from the Supreme Court later this year.  What was his legacy, and how will his replacement with another justice affect the Court's interpretation of the Constitution?

      Souter has moved steadily leftward since his appointment to the Court in 1990, and he is now counted as one of the most liberal members of the Supreme Court.  In 1992, in Planned Parenthood v. Casey, he co-authored a plurality opinion with Justice O'Connor and Justice Kennedy reaffirming Roe v. Wade.  He and the other two justices indicated that although they might not have voted to recognize a woman's right to terminate a pregnancy in the first place, they were unwilling to overrule a decision of such magnitude in the absence of evidence that the Court's decision in Roe had been based upon false assumptions.  In 2000 he dissented from the decision of the Supreme Court in Bush v. Gore awarding the Presidency to George W. Bush.  Instead of terminating the case and halting the recount, as the majority of the Court did, Souter would have remanded the case to the Florida Supreme Court so that it could have devised a uniform statewide method for counting disputed ballots.  In 1996 and 2003 he joined Justice Kennedy and a majority of the Court striking down laws that discriminated against gays and lesbians in Romer v. Evans and Lawrence v. Texas.   In those cases the Court ruled that traditional notions of morality were insufficient to justify laws treating gays and lesbians differently.  Finally, in the detainee cases Hamdi v. Rumsfeld, Hamdan v. Rumsfeld, and Boumediene v. Bush, Souter consistently voted in favor of the prisoners, recognizing their rights under statutes (the Uniform Code of Military Justice), treaties (the Geneva Convention) and the Constitution (the Due Process Clause).  

     Souter's voice has been heard most often and most eloquently on First Amendment issues.  Souter's early decisions were not as protective of freedom of expression.  For example, in the 1991 case of Barnes v. Glen Theatre, Inc., Justice Souter found that a law prohibiting public nudity was "content neutral" as applied to a nude dancing establishment on the ground that the law was enacted and applied for the purpose of reducing crime and discouraging prostitution, and not for the purpose of regulating the expressive content of the dance; as a result he concurred with the decision of the majority to uphold the law as applied to nude dancing.  Souter eventually came to regard these kinds of laws as regulating the erotic content of the expression.

     Justice Souter's greatest contibutions lie in his analysis and interpretation of the Religion Clauses of the First Amendment.  He dissented from the Court's decision Employment Division v. Smith in which the majority watered down protection for the Free Exercise of Religion.  Unlike Justice Scalia, Justice Souter believed that minority religions need protection from the democratic process, and he took the position that any law that substantially burdens the practice of a person's religion is constitutional only if it serves compelling governmental interests.  Justice Souter also interpreted the Establishment Clause broadly,  insisting that the government may not endorse religion by posting the Ten Commandments in public buildings (McCreary County, Kentucky v. A.C.L.U.) and that in a dissenting opinion he would have ruled that the government may not subsidize the cost of children's education in parochial schools (Zelman v. Simmons-Harris).  Souter grounded his interpretation of the Establishment Clause in the text of the Constitution, supported by careful historical research into the drafting of the First Amendment (Lee v. Weisman).  He stood foursquare for the Separation of Church and State, and he believed that in all cases the government must remain neutral with respect to religion, neither promoting religious practice nor interfering with it.  In the McCreary County case, he stated:

The touchstone for our analysis is the principle that the First Amendment mandates governmental neutrality between religion and religion, and between religion and nonreligion.

     Because President Obama is likely to appoint another liberal to replace him, Souter's retirement is not likely to change the balance on the Court.  There will still be four liberals (Stevens, Ginsburg, Breyer, and Souter's replacement), four conservatives (Scalia, Thomas, Roberts, and Alito) and the swing justice, Anthony Kennedy.

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