The Liberal Republican

Last week, the U.S. Supreme Court ended another contentious term with the justices splitting 5-4 roughly a third of the time. It also marked a decade on the high bench for Justice David H. Souter, who has emerged as one of the sharpest critics of the conservative majority and a leader of the court’s liberals.

Souter is rallying dissenters in a relentless battle against a bare majority, commanded by Chief Justice William H. Rehnquist, over states rights and the power of Congress to enact anti-discrimination and other laws. Invariably, Justice John Paul Stevens, named by Republican President Gerald R. Ford, and President Bill Clinton’s two court appointees, Justices Ruth Bader Ginsburg and Stephen G. Breyer, join Souter’s dissents.

Make no mistake. With the court so bitterly divided, the stakes in the coming presidential election are high for Souter. Depending on who is elected and fills future vacancies, the balance on the court is certain to shift. Either Souter’s dissents will become opinions of the court, or his struggle will drag on for 20 years or more.

Last week, Souter was in the bare majority that struck down Nebraska’s broad ban on partial-birth abortions, just as he was in stopping the court from overruling its 1973 Roe vs. Wade decision in Planned Parenthood vs. Casey in 1992. Writing for the court in Casey, Souter compared the abortion controversy to the 1937 constitutional crisis over the court and to its overruling the doctrine of separate but equal in education in Brown vs. Board of Education in 1954. The court correctly abandoned precedents in those instances, Souter stressed, but Roe is different and overturning it would badly damage the court’s prestige and the public’s faith in constitutional principles.

Earlier this term, Souter again led the charge in blasting the other appointees of Republican Presidents Ronald Reagan and George Bush, this time for striking down the Violence Against Women Act. He attacked them for limiting congressional power and for second-guessing the reasonableness of federal legislation addressing violence against women, which costs the national economy $3 billion annually.

Similarly, Souter challenged the court’s conservative majority when it invalidated the Brady Handgun Violence Prevention Act and the Religious Freedom Restoration Act in 1997, the Gun-Free School Zones Act in 1995 and other laws. In its haste to prop up states’ rights, the majority dismissed the social and economic consequences of guns in schools. But Souter countered with a one-two punch, underscoring the power of Congress to respond to national problems and its need to combat the effects of gun violence on the economy.

No one predicted the role Souter now plays. When Bush nominated him July 23, 1990, legal analysts predicted he would solidify a conservative court, instead of carrying on the tradition of liberal Justice William J. Brennan Jr., whose seat he fills and who was also named by a Republican president, Dwight D. Eisenhower (who later regretted his selection). How wrong Souter has proved them.

Labeled the stealth candidate, Souter was a mystery man, little known outside New Hampshire. At the urging of Bush’s chief of staff, former New Hampshire Gov. John H. Sununu, and Sen. Warren B. Rudman (R-N.H.), he had been seated on a federal appellate court three months earlier but had yet to decide a case. Before that, he spent seven years on the state supreme court, after serving on a superior court and as state attorney general.

Nonetheless, Souter offered candid insights during his two days of confirmation hearings before the Senate Judiciary Committee. Unlike Judge Robert H. Bork, whose 1987 nomination was defeated, Souter was congenial, wry and, as he put it, open-minded: not wedded to a rigid judicial philosophy but concerned with history and tradition.

Most revealing, Souter declared that the Constitution’s majestic clauses--the due-process and equal-protection clauses--are broad and demand attention to evolving precedents. He also declined to embrace the hard-line states’ rights position of conservative senators like Strom Thurmond (R-S.C). So, not surprisingly, he now fights with the standard-bearers of that position, Rehnquist and Justices Antonin Scalia and Clarence Thomas.

Actually, Souter’s dogged stance should come as no surprise. It is rooted in his family heritage of Yankee Republicanism. His great-great-grandfather played a role in securing Abraham Lincoln’s presidential nomination in 1860. Other relatives worked in the Underground Railroad, helping escaped slaves to freedom. Throughout U.S. history, Yankee Republicans have defended the will of the nation and championed freedom for all in standing up to states’ rights advocates, who preached parochialism and often harbored racism.

Unquestionably, Souter considers himself engaged in an epic struggle comparable to the judicial controversy of the 1930s. Then, a conservative majority of the court struck down early New Deal legislation. In 1937, Democratic President Franklin D. Roosevelt retaliated by proposing to increase the number of justices from nine to 15, thereby securing a favorable majority. The court, in turn, backed down with its switch-in-time-that-saved-nine decisions, and Roosevelt’s court-packing scheme was defeated.

For more than 50 years after the 1937 constitutional crisis, the court deferred to the exercise of congressional power in passing the Civil Rights Act of 1964 and most other laws. But Rehnquist’s bare majority appears bent on turning back the clock, even drawing into question the constitutionality of the Civil Rights Act.

Repeatedly, Souter skillfully reminds the court and the country how disastrous--”tragic” is his word--conservative judicial activism was in the 1930s and at present. Then and now, he emphasizes, the court’s decisions rest on nothing more than empty formalistic distinctions. Back in the 1930s, they were contrived to preserve the late-19th-century philosophy of laissez-faire economics. Now, they aim to advance what he considers to be an intellectually indefensible conception of states’ rights. Like the pre-1937 court, the Rehnquist court thwarts the operation of the national democratic process in disregard of our nation’s history and the world economy.

Again, last week, Souter led the dissenters in fighting the conservative majority’s chipping away at the high wall of separation of church and state. When the majority overturned two precedents in upholding direct government aid to religious schools, Souter passionately defended principle and displayed a keen knowledge of history, just as he did when the court struck down affirmative-action programs and signaled an end to efforts to achieve integrated schools.

Souter’s oak-paneled, spartan chamber offers another clue to his emergence as an eloquent, scholarly advocate of both federalism and individual rights. Above the desk where Souter works--without a computer, unlike other justices--hangs a portrait of Chief Justice Harlan F. Stone. Both justices share roots in New Hampshire and Massachusetts, and Stone was known as a “New England woodcarver” for his carefully crafted opinions. Appointed by Republican President Calvin Coolidge in 1925, Stone was elevated to chief justice by Roosevelt, in 1941, because he championed the court’s deference to Congress and its protection of fundamental rights and minorities.

Souter also frequently cites another Republican justice, John M. Harlan, who was appointed by Eisenhower. Harlan was the grandson and namesake of Justice John Marshall Harlan (1877-1911), who coined the phrase “the Constitution is colorblind” in his dissent in Plessy vs. Ferguson in 1896. The second Harlan (1955-71) continued Stone’s combination of judicial self-restraint and ardent defense of individual rights. Like Harlan, Souter was a Rhodes scholar at Oxford University before he went to Harvard Law School. His intellectual kinship with Harlan is evident in his opinions defending the right of privacy, the separation of church and state and evolving standards of due process and equal protection.

Like Stone and Harlan, Souter is a Republican in the tradition of Lincoln and the Reconstruction Congress. Remaining true to principles, with a grand view of history, Souter wages war with Reagan’s and Bush’s appointees over their judicial activism and social conservatism. Asked about his stance, he might wryly reply he is a Republican from a Republican state, who just happens to make a living writing liberal dissents. *

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The Divided Court: Numbers to Know

* There were 78 decisions this term.

* 21 of these were 5-4 decisions-the highest number in almost a decade and a large proportion than in the last 10 years.

* in 14 of these 5-4 decisions, Rehnquist, O’Connor, Scalia, Kennedy and Thomas comprised the majority.

* in 6 of the 5-4 decisions, Souter joined in the majority.

* in 6 of the 5-4 decisions, Souter wrote the minority opinion; he wrote separate dissents in four other cases.

Sources: Thomas C. Goldstein in United States Law Week