International Law

Souter Retires

By Christopher Bird

Associate Justice David Souter of the United States Supreme Court announced his retirement from that country’s highest judicial office last week. Souter retires after a 18-year term on the top bench, and at times like these it seems appropriate to consider the impact of a career in one of the most important judiciaries in the world by examining some of his major decisions.

One of his earliest major decisions was Planned Parenthood v. Casey, 505 U.S. 833 (1992), wherein Souter (along with Sandra Day O’Connor and Anthony Kennedy in a plurality opinion) declined to overturn Roe v. Wade, 410 U.S. 113 (1973), but in doing so allowed several conditional access rules for obtaining an abortion to stand - including a 24 hour waiting period, parental consent requirements for minors, and required disclosure about the potential health risks of obtaining an abortion. However, a spousal notification requirement was overruled on the basis that it could potentially enable abusive husbands. (How spousal notification differs from parental consent where an abusive figure is in the household was never adequately explained in the decision.) The plurality also found that the state had an interest in the life of the fetus once the fetus reached viability, which was a major blow to abortion rights activists in the United States.

Over time, though, Justice Souter began demonstrating a distinct civil libertarian streak in his decisions. Justice Souter dissented in Zelman v. Simmons-Harris, 536 U.S. 639 (2002), wherein the Supreme Court found that government-funded school voucher programs did not violate the Establishment Clause requiring the separation of church and state. Souter argued that the majority decision was incorrect because it misapplied the concept of “choice” and considered public funding for public schools to be equivalent to public funding for religious schools.

In Virginia v. Black et al., 538 U.S. 343 (2003), Justice Souter ruled that the burning of a cross by white supremacist groups, in and of itself, could satisfy the demands of being considered “content” for the purpose of First Amendment protections:

To understand how the provision may work, recall that the symbolic act of burning a cross, without more, is consistent with both intent to intimidate and intent to make an ideological statement free of any aim to threaten… [o]ne can tell the intimidating instance from the wholly ideological one only by reference to some further circumstance. In the real world, of course, and in real-world prosecutions, there will always be further circumstances, and the factfinder will always learn something more than the isolated fact of cross burning. Sometimes those circumstances will show an intent to intimidate, but sometimes they will be at least equivocal, as in cases where a white supremacist group burns a cross at an initiation ceremony or political rally visible to the public.

Most recently, in Boumediene v. Bush, 553 U.S. (2008), Justice Souter wrote a concurring opinion in solidarity with Justice Kennedy’s majority decision upholding the habeas corpus rights of enemy combatant detainees at Guantanamo Bay. Souter’s opinion lent rhetorical weight to Kennedy’s scholarly history of habeas corpus law:

A second fact insufficiently appreciated by the dissents is the length of the disputed imprisonments, some of the prisoners represented here today having been locked up for six years, ante, at 66 (opinion of the Court). Hence the hollow ring when the dissenters suggest that the Court is somehow precipitating the judiciary into reviewing claims that the military (subject to appeal to the Court of Appeals for the District of Columbia Circuit) could handle within some reasonable period of time…

It is in fact the very lapse of four years from the time Rasul put everyone on notice that habeas process was available to Guantanamo prisoners, and the lapse of six years since some of these prisoners were captured and incarcerated, that stand at odds with the repeated suggestions of the dissenters that these cases should be seen as a judicial victory in a contest for power between the Court and the political branches.

Justice Souter leaves the Supreme Court with an impressive track record. His successor will have big shoes to fill.

Full post as published by The Court on May 04, 2009 (boomark / email).