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Not the Justice Republicans Expected

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By Robert Barnes
Washington Post Staff Writer
Saturday, May 2, 2009

Justice David Hackett Souter started on the Supreme Court's right, very briefly became part of its center and then for a much longer period was firmly established on the left. Conservatives and liberals are not finished debating whether he's the one who drifted or if the court itself moved.

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But there will be no doubt that the legacy of the 69-year-old Souter is far different than what would have been expected from the man President George H.W. Bush's chief of staff prematurely called a "home run for conservatives."

Instead, it was President Obama yesterday who offered the praise of one pleasantly surprised. "He came to the bench with no particular ideology," Obama said after Souter informed him of his intention to step down. "He never sought to promote a political agenda. And he consistently defied labels and rejected absolutes, focusing instead on just one task -- reaching a just result in the case that was before him."

The results for Souter in the high-profile decisions that define the court in the public's mind were almost all on the left. His role in an unusual three-member opinion in Casey v. Planned Parenthood that saved abortion rights established by Roe v. Wade was an early signal that conservatives had not gotten the justice they wanted.

It has been followed by Souter's support for gay rights, affirmative action and other government programs meant to remedy past discrimination and segregation, the restriction of the death penalty and constitutional rights for suspects held in the fight against terrorism.

"Justice Souter's common law jurisprudence, with its flexible approach to constitutional interpretation and deep commitment to precedent, including expansive civil liberties rulings, makes him an unlikely model for future Republican nominees to the court," wrote his biographer Tinsley E. Yarbrough, a professor at East Carolina University in Greenville, N.C.

But the lesson of nominating a little-known judge with a limited trail of opinions and writing was one Republicans learned well, evidenced by the unsurprising jurisprudence from the three justices named by both President Bushes since Souter: Clarence Thomas, John G. Roberts Jr. and Samuel A. Alito Jr.

Souter's retirement brought mostly brickbats from the right, such as the sentiments of conservative constitutional scholar John O. McGinnis of Northwestern University's law school: "Souter will be known wholly for doing the unexpected by becoming one of the most liberal justices on the court. . . . He leaves no independent jurisprudential mark and not a single memorable phrase in an opinion of which he was the acknowledged author."

Not surprisingly, Souter's supporters see things differently. "The court moved right, around him, and the Republican Party moved right, as well," said Kermit Roosevelt, a University of Pennsylvania law professor and former Souter clerk. At recent reunions of his clerks, it was clear that Souter was ready to move on, but his clerks urged him not to retire, "especially so during the last administration," Roosevelt said.

Roosevelt, like others, said the decisions that have made Souter controversial reflect his judicial temperament rather than personal ideology.

"Part of his philosophy about the Constitution and the court's work is a respect for precedent," he said. "He doesn't like dramatic change."

Among the back-and-forth yesterday between conservatives and liberals, and antiabortion and abortion rights groups, came praise for Souter from the U.S. Chamber of Commerce. He was the author of last year's decision slashing punitive damages for Exxon Mobil resulting from the Exxon Valdez oil spill in Alaska.

"We will remember Justice Souter as an influential voice on the Supreme Court, for taking a balanced and thoughtful approach to the unpredictability of punitive damages, for recognizing the burdens of legal discovery on businesses, and for affirming the primacy of the federal government in foreign affairs," the chamber said.

One reason Souter seems ill-defined to the public is his reluctance, greater than any of the other justices, to reveal himself. His famous statement about cameras in the court is "over my dead body." He rarely gives speeches, and even more rarely, interviews. But friends describe him as witty and charming, with old-fashioned manners, and he seems well liked by his fellow justices. Justice Anthony M. Kennedy yesterday even described him as "one of the best raconteurs."

Justice Ruth Bader Ginsburg recently described how she persuaded the lifelong bachelor to escort her to the opera when her husband was under the weather.

"He never goes out," Ginsburg told her audience of law students, "so people were amazed to see him."


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