Justice Souter's Conservatism

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.

Others have already written in this space about Justice Souter's commitment to precedent and to the common law method of judging. Although politically conservative jurists often call for overruling liberal precedents like Roe v. Wade (1973) or even West Coast Hotel v. Parrish (1937), there is a sense in which respect for precedent is inherently conservative. After all, the "original meaning" of conservatism in political theory, typically traced to the eighteenth-century philosophy of the British Whig, Edmund Burke, calls for the preservation of the established social order and eschews the very sort of radical change that overturning Roe or, even worse, the New Deal, would entail. A conservative confronted by the legacy of the New Deal and Warren Courts should think long and hard before overturning those precedents, and that is exactly what Justice Souter did. If the court's balance should tip leftward in a second Obama term, contemporary political conservatives will rediscover the importance of precedent; one might hope they would also reconsider David Souter.

Fewer commentators have noted another quintessentially conservative aspect of Justice Souter's jurisprudence, which is his strong commitment to history in constitutional adjudication. Make no mistake: The best originalist on the Supreme Court is not Antonin Scalia or Clarence Thomas, but David Souter. For proof, one need look no further than Justice Souter's oft-mocked (for its length) but never-refuted dissent in Seminole Tribe v. Florida (1996). The court held in Seminole that Congress may not subject state governments to private lawsuits for money damages under federal law because the Constitution includes an unenumerated principle of broad state sovereign immunity. Justice Souter's eighty-five-page dissent conclusively demonstrated that this immunity is inconsistent not only with the text of the Eleventh Amendment but also with the Founding Generation's understanding of sovereignty, which envisioned a division of sovereign authority between the national and state governments inconsistent with any unitary principle of sovereign immunity. In response to the majority's argument that state sovereign immunity was an outgrowth of America's common law heritage, moreover, Justice Souter exhaustively documented the Founders' caution about incorporating English common law principles into the American legal system and, in particular, their desire to avoid setting those principles in constitutional stone. Justice Souter's careful originalism is likewise evident in his analysis of the common law roots of substantive due process (Washington v. Glucksberg (1997)) and his historical reconstruction of the religion clauses (Lee v. Weisman (1992)). Liberal critics of originalism should take note: there is nothing inherently "conservative," in terms of political results, in an approach that stresses the original understanding of constitutional texts.

Perhaps even more fundamentally, Justice Souter implicitly rejected the Legal Realist proposition that law is ultimately a matter of politics and policy. To be sure, Justice Souter accepted the inevitable reality that traditional legal sources like text and precedent do not mandate a clear and solitary "right answer" in all cases - particularly those difficult enough to reach the Supreme Court - and that politics and policy often influence how judges fill in the gap legal indeterminacy creates. But that sort of realistic appraisal of the limits of legal constraint differs significantly from the view that judges should forthrightly embrace a policymaking role. The latter view has both conservative and liberal proponents; both Judge Richard Posner on the right and Justice Stephen Breyer on the left, for example, have suggested that judges should be more candidly consequentialist when resolving the cases that come before them. Justice Souter's more traditional embrace of judicial "reasoned judgment," inherited from the younger Justice Harlan, stands in basic opposition to this view. One hopes that the debate over Justice Souter's successor will acknowledge that, while almost no one today naively thinks that judges do not "make law," meaningful differences of degree remain as to the extent of that lawmaking function and the eagerness with which jurists should embrace it.

I fear that, in an important sense, the Justice's Republican critics will get their wish: there simply are no more David Souters available to fill the gap on a court that will sorely miss him. Yet I am confident that his legacy will consist not simply of a string of liberal votes but also of a style of judicial conservatism that remains much needed today. The court has lost its best jurist, and we are surely poorer for it. But he has left behind a thoughtful and well-developed tutorial on what a jurist ought to be.