Justice Souter Remembered

Strict Scrutiny Podcast during the summer has an opening news segment and follows up with an interview. The latest involved two Souter clerks talking about the recently deceased justice. 

Souter is probably my favorite modern-day justice. I was wary about him when he was confirmed. Why would I not? I was younger, and any nomination by a Republican president, especially to replace William Brennan, would be a problem. 

Souter had some dubious early votes, including Rust v. Sullivan. Still, he was part of the Planned Parenthood v. Casey (abortion) plurality and soon was fairly consistently voting with the liberals. He was no Brennan. But he was overall very good, including on the separation of church and state. 

I also like Souter's personality. He is more personable than I am. I am less of a Luddite. But his quiet, studious, and friendly character is something I firmly support.  Souter is the justice that I can most relate to in various respects.

He did join the majority in Payne v. Tennessee (1991), helping to overturn a couple of recent opinions involving victim impact statements. This was Justice Marshall's swan song, and his dissent was a somewhat hypocritical paean on stare decisis. As if honestly worried about that as a neutral principle

Marshall was worried about the new membership overturning various 5-4 majority opinions that he liked. And, though perhaps not quite the ones he specifically listed, that would happen in time. Roe v. Wade, one opinion he felt was doomed, was saved in the short term after he retired. 

Souter was later concerned about the lengths taken to produce victim impact statements. Payne himself was not executed. He was due to be executed in 2020, and then it was delayed due to COVID. Ultimately, his sentence was commuted to life imprisonment. 

Payne, even after all this time, is not even sixty years old. His ultimate fate is also a reminder that a Supreme Court opinion is not the end of the line. 

Different favorite Souter opinions were cited, including one involving voting rights (voter ID) and another concerning DNA testing. The dissent was something of a swan song involving Souter's support of substantive due process and common law judging. 

Souter supported the challenge on a narrower ground than the other liberals. He was open to a constitutional claim developing, but was careful about declaring it was already established. I have seen someone arguing that this 2009 dissent was a subtweet about same sex marriage. The law needs to get used to certain things.

This liberal judicial humility was sort of Brennan-lite and reflected in his famous Harvard speech. Again, I firmly agree. I have some broad views, but recognize there are some limitations about applying them.  

Souter was also known for his humor, somewhat dry and self-effacing. A famous case was when someone confused him with Justice Breyer. 

I have talked about Souter before, but we need to keep on remembering role models in these times. 

ETA: Justice Souter was originally given the dissent in the Citizens United case, but the majority expanded the stakes. Justice Stevens later said he used a chunk of Souter's original dissent in writing his own.

There appears to be some behind-the-scenes shenanigans in a voting rights case that the Supreme Court set for reargument. They got around to (late Friday in August) to flag what they have in mind. 

Richard Hasen and others are worried.