The Magazine


Nov 6, 1995, Vol. 1, No. 08 • By JEREMY RABKIN
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Concerns about Souter's likely votes on affirmative action were the third focus of critics at his confirmation hearings. Here, too, he has been every inch Brennan's successor. When the court voted this year to strike down racial gerrymandering of congressional districts, Souter took the opposite side. Kennedy and O'Connor voted this year to demand "strict scrutiny" of federal affirmative action programs involving explicit racial preferences; Souter again dissented.

Aides and advisers who participated in the selection of Souter in the Bush White House express disappointment and dismay -- with varying degrees of bitterness-at Souter's performance. All profess to be quite surprised. Why has Souter turned out so differently than his sponsors expected?

One camp believes Souter remains captive to the sort of jurisprudence that goes on in state courts like the one in New Hampshire for which he toiled. Says Thomas Jipping, who provided supportive legal analysis for a coalition of conservative groups endorsing Souter's nomination in 1990: "Souter has the mentality of a state court judge, working through the details of common-law cases. He sees his job as adjusting the details of precedents and has no feeling for the larger constitutional principles that have to be the main concern at the level of the U.S. Supreme Court."

John McGinnis, in a recent article in Policy Review, characterized Souter as "a prisoner of legal process jurisprudence," which prompts judges to "avoid unprincipled decision making by focusing on the distinctive aspects of legal procedure such as stare decisis." Stare decisis is legalese for adhering to precedent.

At first glance, these suggestions seem plausible. For example, as McGinnis notes, Souter took pains to defend racial gerrymandering and racial set- asides in cases this past term not by offering some larger defense of racial balancing as the path to racial harmony, but by discussing the relevant precedents and simply offering a different interpretation from the majority.

Still, even a judge obsessed with precedent and process should tack right at times; Souter almost always bears left. And he is sometimes startlingly clear about his reasons. Souter's contribution to the joint opinion in the Casey abortion case, a long disquisition about precedent, approaches a level of judicial messianism beyond anything articulated by the Warren court. Souter argued there that the court had been right in 1937 to overrule previous decisions limiting government's regulatory powers, and in 1954 to overrule the old doctrine of "separate but equal," because, given new "facts," the "thoughtful part of the Nation could accept each decision to overrule . . . as a response to the Court's constitutional duty." But such a confession of error was not permissible in the case of Roe v. Wade. When "the Court decides a case in such a way as to resolve the sort of intensely divisive controversy reflected in Roe," he wrote, "the Court's interpretation of the Constitution calls on the contending sides of a national controversy to end their national division by accepting a common mandate rooted in the Constitution." Overruling Roe would undermine "the character of a Nation of people who aspire to live according to the rule of law. Their belief in themselves as such a people is not readily" separable from their understanding of the Court invested with authority to . . . speak before all others for their constitutional ideals." Whatever else one might say of such self-serving bombast, it is not the rhetoric or the self-image of a humble legal technician. Rather, Souter presents the court as the nation's ultimate spiritual authority, as infallible in its sphere as the Bishop of Rome is in his.

In fact, this sort of pomposity leads other conservatives to interpret Souter's surprising record in Washington as the response of a small-timer, dazzled and made giddy by the vastly broader challenges of the Supreme Court. On the New Hampshire Supreme Court, he never had to deal with major First Amendment cases, with affirmative action, or other Solomonic problems. A Supreme Court clerk who has maintained a friendly relation with Souter reports his saying, "I never had to think about these things until I came to Washington. I just never thought much about them. I had no settled views." A Justice Department official who researched Souter's decisions on the New Hampshire Supreme Court disgustedly characterizes the bulk of them as "cow law."