The Magazine

THE SORRY TALE OF DAVID SOUTER, STEALTH JUSTICE

Nov 6, 1995, Vol. 1, No. 08 • By JEREMY RABKIN
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David Souter, stealth candidate -- that was the soundbite in the summer of 1990, when President Bush announced the unknown New Hampshire judge's surprise nomination to the U.S. Supreme Court. "Stealth candidate" stuck to Souter throughout that summer and during his confirmation hearings. That tag has rarely been used since then. But it still fits.


The radar the "stealth candidate" successfully evaded, however, was not the system operated by the National Abortion Rights Action League, or the National Organization for Women, or the Mexican-American Legal Defense Fund, or other such groups sounding the alarm.


No, it was the (then) 44 Republican senators and the entire Washington conservative establishment whose tracking antennae he eluded. Five years later, the damage is glaringly obvious. Souter, supported by conservative groups and unchallenged by conservatives inside the Bush White House, is now one of the staunchest liberals on the court -- a more reliable champion of liberal causes than Clinton appointees Ruth Bader Ginsburg and Stephen Breyer.


Indeed, Souter's positions are now almost indistinguishable from those of his predecessor, Justice William Brennan, the most relentless and effective champion of liberal judicial activism in the past half century. Souter has developed a warm feeling for Brennan, whom he has praised in lavish terms in public testimonials. The two have so much mutual trust that Souter routinely borrows the clerk Brennan himself recruits each year to help him in his work as a retired justice. Nor should Brennan's clerk feel at all out of place in the Souter chambers. Those who have served as clerks to other justices report that Souter's aides are among the most consistent leftists now working at the court. Souter picks them from a short-list of candidates prepared by the previous year's clerks, who in turn were picked from a short-list prepared by their predecessors, and so on back to the original set of clerks Souter inherited from Brennan.


Only one conservative organization, Howard Phillips's Conservative Caucus, raised its voice in opposition to Souter at the time of the confirmation proceedings (and then solely on the basis of doubts about Souter's personal views on abortion). Other conservative groups with wider agendas relied on assurances from the Bush White House -- "Souter," said chief of staff John Sununu, "will be a home run for conservatives" -- and were persuaded to issue statements of support for Souter.


How misplaced was this trust may be judged from the three policy fronts on which liberal advocacy groups directed the most fire against Souter in 1990. First and foremost was the issue of abortion. Critics worried that Souter would provide the crucial fifth vote to overturn Roe v. Wade. Instead, Souter, in a joint opinion with Justices Anthony Kennedy and Sandra Day O'Connor in 1992's Planned Parenthood v. Casey, celebrated Roe as a landmark that all sides in the abortion debate must now accept. In three cases since then dealing with the proper scope of federal protection for abortion clinics, Souter has always voted with the abortion-rights advocates, leaving more conservative justices to worry over the First Amendment claims of pro-life picketers.


On church-state issues, which also drew special concerns at the time of his confirmation proceedings, Souter has again shown a reliable liberal bent. In Lee v. Weisman, in 1992, he concurred in the court's ruling that even an innocuous non-sectarian "prayer," delivered by a reform rabbi at a high school graduation ceremony, was an impermissible "establishment of religion." In 1994, he broke new ground in religiophobia when he wrote in a majority decision that the village of Kiryas Joel in New York state could not be allowed to elect its own school board (in a normal, secret-ballot vote) because its residents, Hasidic Jews, were too devoted to their religion. Even O'Connor and Kennedy, while concurring with Souter's opinion, expressed misgivings about Souter's reasoning and argued for more accommodation to these American citizens of orthodox faith than the vigilant New Hampshire jurist would allow.


Last term, Souter was still so worried about any sign of governmental endorsement of religion that he argued (in contrast to Kennedy and O'Connor) against allowing the University of Virginia to fund a Christian student magazine, even while the university was funding student activities and publications of every other description, including those of Muslim and Jewish student groups. Souter also worried about permitting the Ku Klux Klan to set up a cross on a public square, since the permit for the Klan might seem to send a "message" of "public endorsement" -- of Christianity!