By Ernest A. Young, Professor of Law, Duke Law School & former Clerk to Justice David Souter (1995-96)
As one of David Souter's most conservative former clerks, I have always winced at the Republican slogan of "no more Souters" for the Supreme Court. Most conservatives feel - rightly, in many respects - that Justice Souter disappointed their hopes to move the court in a dramatically rightward direction. Conversely, liberals take the view - again, with some justification - that Justice Souter has been a bulwark of respect for liberal Warren and Burger Court precedents and a key vote for advancing the liberal agenda in areas like gay rights and the death penalty. But this conventional wisdom misses the important sense in which Justice Souter remained a methodological conservative throughout his career. That conservative approach to the judicial task ought to inform both assessments of Justice Souter's legacy and the debate over the nomination of his successor.