RePosted -- Souter's Votes May Ease Conservative Anxieties

By Ruth Marcus
Friday, May 1, 2009; 1:54 AM

Editor's Note: This article first appeared in The Post on May 28, 1991. We republish it as part of our RePosted feature, where we dig through the Post archives to find pieces that shed light on current events.

In this article, Ruth Marcus -- now a Post columnist and editorial board member, but back then a national desk reporter -- analyzed Justice David H. Souter's first term on the Supreme Court. She wrote that initial signs suggested he would be a solid conservative voice -- though she acknowledged that "predicting the contours of a new justice's philosophy at this early stage in his career is dangerous business."

Today, The Post is reporting that Souter plans to retire, and staff writer Robert Barnes refers to him as "the Republican-appointed New England jurist who has become a reliable member of the liberal bloc on the Supreme Court."

Justice David H. Souter's moderate-sounding testimony at his confirmation hearings last September left some conservatives nervous about whether they were getting the judicial hard-liner they had been promised.

Souter's performance during his first eight months on the bench should help allay that anxiety. If Souter does not turn out to be a home run for conservatives, as White House Chief of Staff John H. Sununu reportedly predicted at the time of Souter's nomination, his votes suggest at the very least "a stand-up triple," as one court observer put it.

That assessment was reinforced last week with one of Souter's first votes in a major constitutional case outside the criminal justice area. The newest justice provided the fifth vote to uphold the constitutionality of regulations prohibiting federally funded family planning clinics from discussing abortion with their patients.

Predicting the contours of a new justice's philosophy at this early stage in his career is dangerous business. The process is something like a connect-the-dots picture, in which the true shape emerges only as various points are filled in.

With Souter, many sections of the constitutional picture remain blank because he has not yet been called on to vote on such areas as church-state relations, freedom of the press or affirmative action.

Another limiting factor is that the sketch so far has largely been drawn by other justice's hands: Souter has gotten off to a notably slow start and written only one opinion of the 64 released this term, a unanimous ruling on a procedural point about jury selection. While many things can be told about judges by the way they vote, it also helps to hear how they say it in their own words.

Until last week, Souter had lined up solidly with Justice Sandra Day O'Connor, who is viewed as occupying a centrist position on the increasingly conservative court. Souter and O'Connor had voted together in all 24 split decisions in which they both participated, a pattern matched by no other pairing of justices.

In one important example, they joined with the court's three remaining liberals to rule that fetal-protection policies excluding fertile women from jobs that pose reproductive hazards violate the federal sex discrimination law.

But on Monday they disagreed on a death penalty case in which the court overturned a convicted murderer's death sentence because he did not have enough warning that the judge was considering capital punishment. Souter joined Chief Justice William H. Rehnquist and Justices Byron R. White and Antonin Scalia in dissent in that case.

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