David H. Souter began his high court adventure as the "stealth nominee" and he ends it as the "stealth justice" in his steadfast refusal to shine any light on his personal thoughts or life. But there is nothing stealthy about the decision on which much of his legacy will rest.
After years on the U.S. Supreme Court and hundreds of opinions, the legacy of a justice ironically almost always comes down to a handful of decisions in the public's mind. At the top of a Souter list would have to be the remarkable "troika" majority ruling in 1992 that reaffirmed a woman's right to choose an abortion -- Planned Parenthood v. Casey.
In one of the most electric moments in the marble-bound courtroom during the last two decades, Souter and justices Sandra Day O'Connor and Anthony M. Kennedy took turns reading key parts of a majority decision that many outside of the courtroom thought would doom the landmark Roe v. Wade. "Substantively, it will be hard not to remember him as someone who brought some equipoise to the abortion issue, at least in terms of the Court's jurisprudence," said Douglas Kmiec of Pepperdine University School of Law. "This was the great unknown about him at the time of his appointment."
Aside from the decision's overall importance, the part generally attributed to Souter -- the rationale for adhering to prior precedents -- is a large window into how he viewed his job, said Meir Feder in the New York office of Jones Day, who clerked for Souter in his first term. "None of us really knows to this day what he thinks of Roe v. Wade and how he would have voted if it came before him on a clean slate," said Feder. "But the respect for prior decisions and continuity on the Court was extremely important to him. I think he deeply believed the law and important constitutional principles were not things that should vary back and forth depending on new appointments to the Court."
BATTLING SCALIA
In his nearly two decades on the court, Souter, perhaps the Court's most incisive and tenacious questioner on the bench, has not written many majority decisions in "blockbuster" cases. Souter most often aligns himself with the Court's liberal wing, where he and that wing's three other members work hard to capture a fifth vote in those cases. And that fifth vote -- usually Kennedy -- often receives the majority opinion assignment.
John McGinnis of Northwestern University School of Law harshly criticized Souter's tenure, saying, "Souter will be known wholly for doing the unexpected by becoming one of the most liberal justices on the Court and participating in the plurality that reaffirmed the core of Roe. He leaves no independent jurisprudential mark and not a single memorable phrase in an opinion of which he was the acknowledged author. He was the worst writer on the Court by a considerable margin."
But other scholars contend that in addition to the Casey abortion decision, Souter has significantly influenced the court's direction in such areas as the First Amendment -- particularly the establishment and free exercise clauses and campaign finance -- copyright and technology issues, employment discrimination, and civil justice issues involving punitive damages and pleadings.
Reflecting a view staunchly held by his predecessor, Justice William Brennan, Souter was responsible for helping to maintain a high wall between church and state in such cases as Lee v. Weisman (opposing school prayers at school graduation ceremonies) and in McCreary v. ACLU (majority opinion striking down a Ten Commandments display).
He held file-sharing Grokster responsible for copyright infringement in MGM v. Grokster, and he set what is predicted to be a new, higher pleading standard (more favorable to defendants) in antitrust and other cases in Bell Atlantic v. Twombly (pdf). Employees who participate in an employer's investigation sexual harassment are protected against retaliation under Souter's majority opinion in Crawford v. City of Nashville (pdf), and he held employers vicariously liable for sexual harassment by their supervisors in his majority opinion in Faragher v. City of Boca Raton. He set a new and lower standard for maritime punitive damages awards in Exxon Shipping v. Baker. And, he dissented in the now infamous Bush v. Gore.
And, Pepperdine's Kmiec noted, soccer moms will remember him for upholding a warrantless arrest for a misdemeanor seat belt offense in Atwater v. Lago Vista, Texas.
"In some ways, his most important opinions are opinions that challenge Justice [Antonin] Scalia on the history of free exercise, state sovereignty, and the Second Amendment," said Michael Dorf of Cornell Law School. "He says, 'I've looked at these sources as well, and I see them either supporting a different result or much more ambiguous than you do, Justice Scalia.'"
Dorf called Souter the "counterpoint" to Scalia on the Court. "Souter says, 'I, too, am a conservative, but a traditional conservative who values precedent and craft.'"
In a 1994 majority opinion holding that a state could not create a separate public school district for Hasidic Jewish children, Souter countered a Scalia dissent, saying, "Justice Cardozo once cast the dissenter as 'the gladiator making a last stand against the lions.' Justice Scalia's dissent is certainly the work of a gladiator, but he thrusts at lions of his own imagining."
EVOLUTION ON DEATH PENALTY
Souter also has followed what Dorf and others described as "the well-worn path" of justices who come to the Court, apply its death penalty jurisprudence, and become increasingly troubled by it.
In Kansas v. Marsh (pdf), Souter dissented from the ruling upholding a state law imposing death even when aggravating and mitigating circumstances are equal, and he voiced strong concern about the increasing number of death row exonerations.
"In the face of evidence of the hazards of capital prosecution, maintaining a sentencing system mandating death when the sentencer finds the evidence pro and con to be in equipoise is obtuse by any moral or social measure," Souter wrote.
Writing with a fountain pen, working by natural light until forced to turn on a lamp, and eschewing computers, Souter puts in more hours weekly than some justices, said Feder, his former clerk.
"This very powerful position he has been in has never changed him, has never gone to his head."
