Souter’s Shadow

By Braxton Evans

According to various news outlets, today Supreme Court Justice David Souter has announced to the Obama administration that he will be leaving the Court at the conclusion of the June session.  Souter has served on the Court since 1990, after being appointed by President George Bush (Bush 41).  http://www.oyez.org/justices/david_h_souter.

The announcement, although surprising, has been meet with little fanfare because it is believed that Justice Souter’s replacement will not effect the composition of the Court.  President Obama, a Democrat, will be expected to appoint another liberal Justice to replace Souter which would maintain the current balance on the Court.   This would theoretically maintain current Supreme Court Jurisprudence in crucial areas of Substantive Due process as in regards to Privacy (See Planned Parenthood of Southwestern Pa v. Casey, 505 U.S. 833 (1992)), Equal Protection under the 14th Amendment (See Grutter v.  Bollinger, 539 U.S. 306 (2003), and The War on Terrorism (See Hamdan v. Rumsfeld, 126 S. Ct. 2749 (2006).  But this is not assured.

Justice Souter’s own history should give the commentators and President Obama slight pause.  Just because Obama’s eventual appointee may promote a liberal judicial background, does not mean that is the way the future Justice will vote on the Court.   Justice Souter, like  Justice Sandra O’Connor before him (See http://www.oyez.org/justices/sandra_day_oconnor),opinnions have run counter to the ideology of the man that appointed him (Republican President George Bush).  This could again happen with the upcoming Obama appointment.  It would not be irrational to suspect that the men and women who would be up for this high honor might conceal views that would be contrary to Obama’s view or very controversial in nature.  This uncertainy may be resolved by appointing a Justice who has spent a considerable amount of time on the Federal appellate bench (10 plus years).  Of course the problem with that is that the more cases the appointment has presided over, while making it easier to predict how he or she would rule in future, also probably increases the chances that one of their opinions issued has produced sufficient ire, to one group or another that might make the confirmation process more difficult, despite having a majority in the Senate.

The replacement of Justice Souter should not be construed as just a minor occurrence, because commentators wildly believe that his  replacement will sure his views.  American Political History is filled with political actors who have changed their political ideals as well as their political affiliations.   Pennsylvania Senator Arlen Spector  as recent example of this as well as former President Ronald Reagan (as governor of California in the late 70′s).

I have a feeling that this announcement will make larger waves, then what is being reported, simply replacing a liberal with a liberal.  This decision on whom to appoint to the bench will have longer lasting effect on the country than 95% of the other decisions that Obama will make, because of long tenure of the Justices.  Obama probably has already a few names that he would like to nominate for Justice Souter, but just in case the President needs a little help deciding, may I say that Prof. Erwin Chemerinsky has been indispensable in helping me better understand Con Law.  His views may scare conservatives, but his credentials are impeccable.

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