A 'Yankee Republican' In Conservative Court

Justice Souter as opposition thinker in judicial scrum

From the moment David Souter became President Bush's shy and enigmatic choice for the Supreme Court in 1990, he was difficult to pigeonhole. First he was considered a moderate conservative. Then he was called an independent voice trying to "heal" the deep divides on the court. Now, five years later, his role is becoming clearer: a moderate made of steel.

With the high court's sharp right turn in the past two years, Justice Souter's voluminous and often-eloquent dissents have begun to define an opposition view on the court. Perhaps more than that, he has become one of the court's most influential thinkers. With increasing power and self-assurance, Souter is blending conservative and liberal ideals in a way that is earning him new respect.

While on the losing side of a series of hard-fought 5-4 rulings, "Souter has taken the lead more than the other three who join him," says law professor David O'Brien, author of "Storm Center." "In terms of philosophy, Souter's dissents are more profound than anything being written. He is emerging as one of the court's leading thinkers."

Moreover, should President Clinton be reelected, new Supreme Court appointments expected in coming years could well make Souter's vision of individual liberties, in a more circumscribed court, the mainstream direction into the 21st century.

In the current dynamics of the court, Justices Sandra Day O'Conner and Anthony Kennedy are moderates seen as "putting the brakes" on the judicial activism of the harder edged conservatives - slowing down the wholesale overturning of the liberal Warren Court of the 1970s being attempted by Antonin Scalia, Clarence Thomas, and William Rehnquist.

But Souter is carving out a very different concept of law and the court. He has found himself in the thick of the judicial scrum - taking on the role of historian, critic, polemicist, and even "conscience of the court," a description often given to Souter's predecessor, Justice William Brennan, who Souter clearly admires as a role model.

Along with a passionate articulation of individual liberties in the Brennan tradition, Souter argues as a traditionalist that the court's recent sharp turns to the right are too sudden. He states, politely but firmly, that the arguments of the court's right wing are simply not weighty enough to support the dramatic changes they envision - eliminating affirmative action in favor of a "colorblind" society, for example. Or tampering with religious exercise and separation of church and state. In a 92-page dissent in March, he fought against the "states rights" trend, saying the court "follows a course that has brought it to grief before in our history, and promises to do so again."

When is court activism OK?

Souter also admonishes colleagues who opposed "judicial activism" when it was liberal but now seem to support it when it is conservative.

For such reasons, many moderate and left-leaning legal scholars now adore Souter. Partly, says one former Souter clerk, people still can't get over how different Souter is from the initial impression of him in the media. "The image at first was of a weird hermit who was going to be a home run for the conservatives. Actually he is an old-fashioned New Englander - fiscally conservative and moderate to liberal on criminal and social issues."

Judicial activists on the right deride Souter as a "Yankee Republican," uninterested in the populist conservative revolt that brought the Contract With America. For them, Souter is the man who, in 1992, bucked the justices who thought they had the votes in the "Casey" case to overturn the 1972 Roe v. Wade abortion ruling. Instead, Souter formed a coalition with Justices O'Conner and Kennedy not only to uphold Roe but to put abortion rights on even more solid constitutional ground.

To paint Souter as a liberal, however, would be incorrect. He is sympathetic with a conservative desire for a limited role for the court. Yet his conservatism is not "political." He does not "advocate the conservatism of the Reagan-Bush political agenda," says Steven Wermeil, law professor at Georgia State University. "He belongs to a conservative tradition that wants to protect the court from politics. He reminds me of [former] Justice [John Marshall] Harlan, who brought a certain amount of compassion and humanity to his decisions, while believing that the courts were not the ultimate policymakers."

'Brilliant conversationalist'

In recent years, the picture of Souter as a shy eccentric has also faded, replaced by a view of a man who is warm and engaging, "the best storyteller I ever met," says one former law clerk. "He tells stories about himself, others, historical figures. He's a brilliant conversationalist."

One key to Souter's vision of the court, say those who know him, is his respect for precedent, what is called "stare decisis" - a reluctance to make sweeping changes without sufficient argument. Last term, in a dissent in the Missouri v. Jenkins case reversing school districts' responsibility to desegregate, Souter blasted the majority opinion of Clarence Thomas for going past the point of law raised in the case: "No one on the Court has had the benefit of briefing and argument informed by an appreciation of the potential breadth of the ruling. The deficiencies from which we suffer have led the Court ... to overrule a unanimous constitutional precedent of 20 years standing...."

In Rosenberger v. the University of Virginia last June, a major case concerning separation of church and state, the court decided an evangelical publication could receive funding from student activity fees. Souter opened his dissent by writing: "The Court today, for the first time, approves direct funding of core religious activities by an arm of the State."

Locking horns with Scalia

Religious liberty has been a special area of Souter concern - and one place where he has locked horns with Justice Scalia, whose fiery pen and intellect make him Souter's chief opponent on the right. Souter draws a stronger line between church and state than does Scalia. But he is also more sympathetic to the free exercise of religion than his counterpart. Souter disagreed with the landmark "Smith" decision in 1990, authored by Scalia, that let the State of Oregon forbid native Americans to use peyote in a religious ceremony. While the ruling did not have much effect on majority religions, overnight it jeopardized free exercise of faith for minority religions.

In a 1992 concurrence in a Florida animal sacrifice case that had little to do with Smith, Souter nonetheless went far out of his way to take on Scalia's Smith opinion. Since 1940, Souter wrote, "the Court repeatedly has stated that [the free exercise] Clause sets strict limits on the government's power to burden religious exercise. Smith responded to these statements by suggesting that the Court did not really mean what it said." Souter suggested the court reverse its Smith precedent.

"What is so impressive is that Souter didn't have to write this really in-depth response," says a Souter law clerk. "He went way out of his way on an issue of liberty."

"The level of sophistication when Souter and Scalia go at it is really the big leagues," says Julius Genachowski, a former Souter clerk, now counsel to the chairman of the Federal Communications Commission. "As far as legal reasoning, it's as good as it gets."

Yet unlike Scalia, whose rhetorical barrages sometimes anger even conservatives, Souter's decisions are marked by a patient, sometimes laborious reasonableness. University of Southern California law professor Erwin Chemerinsky, for example, was at first bothered by the court's 9-0 decision last year to allow homosexuals to be excluded from a Boston Irish parade. But the clarity of Souter's opinion won him over. "I thought it was wrong to exclude them," he said. "But Souter ... showed me why running a parade is an inherently expressive activity ... it really changed my thinking about the law."

A number of scholars, jurists, and Souter's friends say the justice is paving the way for a court in which his current dissents would become the majority opinion. Says one friend: "Why else write them, unless you are trying to influence a future court in which you are on the other side of the vote?"