Justice David Souter

  • June 10, 2009
    Guest Post


    By Heather Gerken, J. Skelly Wright Professor of Law, Yale Law School & former Clerk to Justice David Souter (1995-96)

    Adam Gopnik once observed that "Paris is a struggle between its pompous official culture and its matchless ... commonplace civilization." That description applies even more aptly to the Supreme Court. Officially, it is an institution cloaked in formality. It is also an institution that takes itself extremely seriously, with its strongest opinions pronounced when it thinks another institution - Congress in passing Commerce Clause legislation or the Religious Freedom Restoration Act, or the Florida Supreme Court in its rulings during the Bush v. Gore litigation - is treading on the court's privileges. Only the court's pompous official culture could explain why the majority in Bush v. Gore - in which the court shut down the Florida recount in an opinion now widely considered an embarrassment - could have claimed that their intervention was an "unsought responsibility." This is not an institution cursed with self-awareness.

    Justice Souter, however, is at the core of the court's matchless commonplace civilization, something that may explain why he dissented in each of those cases. He is a judge's judge, a courtly lawyer who manages to be both a serious intellectual and a pragmatic decision-maker. He reads everything, is open to new ideas and new arguments, and yet is not swayed by the political winds that waft through the court.

  • June 9, 2009
    Guest Post


    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.

  • June 8, 2009
    Guest Post

    William D. Araiza, Professor of Law, Brooklyn Law School & former Clerk to Justice David Souter (1991-92)

    To many Americans, David Souter reflects the perfect image of a judge: ascetic, bookish, removed from explicitly political tumult, a wearer of three-piece suits. Many of those who have read and thought about his body of work on the Supreme Court reach the same conclusion, but based on deeper criteria. Justice Souter really is a judge, in the deepest Anglo-American sense of the word - that is, a judge in the common law tradition.

    This is perhaps best illustrated by his most important personal statement on the Due Process Clause, his concurrence in the 1997 "right to die" case, Washington v. Glucksberg. As a case implicating the substantive, but unenumerated, rights that clause guarantees, Glucksberg presents the type of issue that is most susceptible to a common law approach. Justice Souter's opinion reflects perhaps the finest application of that approach in any opinion issued by a justice in the modern era.

  • June 3, 2009

    In the words of Justice David Souter, there has been an "ebb of the commerce power [which] rests on error." Since 1937, the Supreme Court charted a path of expansively interpreting Congress's power to regulate under the Commerce Clause. However, the Supreme Court began to curb this authority, striking down congressional acts under a less deferential reading of the clause, in 1995.

    "How much power Congress has under the Commerce Clause is one of the areas in which a Justice Sonia Sotomayor ... could alter the workings of the Supreme Court," according to legal blogger and ACS contributor Chris Geidner. "But it's an area in which we don't have much insight into her thoughts on the matter."

    With Souter's retirement ... the question we're left to consider is two-fold: (1) Would a Justice Sotomayor come down on the same side of the issue as Souter, and, if so, (2) would Sotomayor carry on Souter's legacy of vigorously fighting for congressional power in the Commerce Clause area?

  • June 1, 2009
    Guest Post

    By Kathrine Jack, staff attorney at National Advocates for Pregnant Women

    Abortion, Roe v. Wade and the extent to which fetuses should be afforded legal protection are key issues for many groups examining President Obama's first nominee to the Supreme Court, Judge Sonia Sotomayor. But as the court's decision last week in AT&T v. Hulteen illustrates, while public debate focuses on abortion and the rights of the fetus, we too often forget that the court has never fully recognized or protected the rights of pregnant women.

    In Hulteen, Noreen Hulteen and three other women sued AT&T for reducing their pension benefits because they took time off work for pregnancy and childbirth. Two of the women were actually required by AT&T to take time off - a reflection of workplace practices at the time that presumed that all pregnant women were unfit to work or unwelcome because of their "condition." AT&T provides pension benefits based on a seniority system calculated based on years of employment minus uncredited personal leave time. Until the late 1970s, AT&T treated pregnancy and childbirth leave as uncredited personal time even though all other medical leave resulted in full service credit for the entire period of absence. Decades later, Ms. Hulteen and the other women learned that they were receiving a smaller pension benefit because of the uncredited pregnancy leave. The women argued that this calculation violated Title VII as amended by the Pregnancy Discrimination Act (PDA) in 1978.

    The Hulteen majority opinion acknowledged that a company's failure to credit women for pregnancy leave taken today would be unlawful gender discrimination under the PDA. However, the court found that AT&T's practice was part of "bona fide seniority system" that, when adopted, "as a matter of law, as Gilbert held, was not gender-based discrimination." In other words, since pregnancy discrimination did not violate U.S. law before the PDA, AT&T was free to carry forward that discrimination in its current calculation of pension benefits.