Justice Souter’s First Amendment legacy: not absolutist

Thursday, June 25, 2009

This article is part of an online symposium on the First Amendment Center Online titled Justice Souter & the First Amendment.

WASHINGTON — Soon after President George H.W. Bush nominated David Souter to the Supreme Court in 1990, First Amendment lawyer Bruce Sanford pronounced Souter to be “an enigma, maybe with a capital E.”

The liberal group People for the American Way said it had “serious concerns” and a lot of uncertainty about Souter’s commitment to constitutional values. The Alliance for Justice, another liberal coalition, voiced worry about his “absence of any vigorous defense of individual rights or constitutional law.”

There was much in Souter’s pre-nomination First Amendment record to be uncertain or skeptical about. As New Hampshire’s attorney general, he defended the state’s practice of lowering the state flag on Good Friday to mark the death of Jesus Christ. He defended a state law that required drivers to display the state motto “Live Free or Die” on license plates — a statute later struck down in the landmark U.S. Supreme Court decision Wooley v. Maynard (1977).

On free-press issues, there was little in Souter’s record to go on. The best that Jane Kirtley, then executive director of the Reporters Committee for Freedom of the Press, could say about him at the time was that Souter seemed to respect precedent — which, then and now, tends to protect the news media from ruinous libel suits and government censorship.

Nineteen years later, Souter is about to depart from the nation’s highest court still something of an enigma, though perhaps a lower-case e will do. He never embraced Washington, D.C., his adopted home, and almost never engaged the public, repairing to his beloved New Hampshire every summer as soon as the Court adjourned. His public persona was nonexistent.

But as the articles in this package reveal, Souter has left a significant mark on the Court’s First Amendment jurisprudence. It is not the legacy of a First Amendment absolutist like Hugo Black, or a tireless First Amendment champion like William Brennan Jr., the justice Souter replaced. It is the record of a practical common-law judge who balanced the competing interests and precedents before him and came out with the most sensible answer he could devise. In that balancing he gave significant weight to the First Amendment, but did not flinch at giving other interests equal or greater weight if that is where the precedents or his judgment led him.

In one of his first free-press cases — not many came along during his tenure — the majority of the Court said the state could enforce a contract between a news source and journalist not to reveal the source’s identity. Souter wrote a dissent in that 1991 case, Cohen v. Cowles Media Co., concluding that the public interest in publishing the source’s name — he was a political operative feeding journalists dirt about an opponent — outweighed the interest in protecting the contract. “An election could turn” on information like that being revealed, Souter wrote. “If it should, I am ready to assume that it would be to the greater public good at least over the long run.”

In campaign-finance cases, on the other hand, Souter was willing to toss First Amendment concerns overboard to preserve the integrity of elections. “There is little reason to doubt that sometimes large contributions will work actual corruption of our political system,” Souter wrote in Nixon v. Shrink Missouri Government in 2000, giving almost no attention to the First Amendment issues at stake. Souter’s steady support for campaign-contribution limits to prevent corruption placed him increasingly in the minority on the current Court.

As for religious liberty and the establishment clause, it was Souter’s view of the Court’s precedents and of the intentions of the framers that guided his decision-making — in spite of his New Hampshire record of defending religious displays. Souter became perhaps the most ardent supporter on the current Court of keeping church and state separate. In McCreary County v. ACLU (2005), Souter led the Court in striking down a Ten Commandments display in Kentucky courthouses. “The original text (of the Ten Commandments) viewed in its entirety is an unmistakably religious statement dealing with religious obligations and with morality subject to religious sanction.”

Writing a concurrence in Lee v. Weisman in 1992, Souter insisted it was “settled law” that the establishment clause “forbids state sponsored prayers in public school settings no matter how nondenominational the prayers may be.” He added, “We should stick to it absent some compelling reason to discard it.”

Throughout his tenure, Court-watchers tried to figure out why Souter, billed by his supporters in 1990 as a “home run” for conservatives, had turned out to be such a strikeout. His votes and writings, not just on First Amendment cases but on other issues such as abortion, skewed liberal more often than not.

Some pointed to Souter’s friendship earlier in his tenure with Brennan, the man he succeeded. As early as his confirmation hearing in 1990, Souter had praised Brennan as “one of the most fearlessly principled guardians of the American Constitution” in history.

Before Brennan died in 1997, the two visited each other almost daily when Brennan was in his office at the Court, according to Tinsley Yarbrough’s 2005 biography, David Hackett Souter: Traditional Republican on the Rehnquist Court. Brennan worked his legendary charm on Souter during those visits, as he did with nearly everyone he met. “Many wondered whether the elder justice, one of the most persuasive charmers ever to sit on the high bench, was subtly recreating Souter in his own image,” Yarbrough wrote.

But Yarbrough and others think that a more likely explanation for Souter’s unexpectedly liberal record might be another of Souter’s heroes: the second justice John Harlan. As Jeffrey Toobin wrote in The Nine in 2007, Souter’s idol Harlan was “hardly a radical liberal,” but “believed that law existed to preserve the stability of society and that adherence to precedent best guaranteed a limited and predictable role for the judiciary.” Harlan also believed that individual freedoms were not strictly limited to the words of the Constitution, Toobin wrote, citing a Harlan opinion in which he said individual liberty was a “rational continuum,” not a “series of isolated points.”

Souter’s resulting loyalty to precedent led him to uphold Roe v. Wade in 1992, and it led him to preserve and extend the Court’s fairly liberal First Amendment tradition. In areas of free press and establishment of religion, those precedents (New York Times v. Sullivan and Everson v. Board of Education, respectively) were protective of individual liberty. On campaign finance, the Court’s precedents (Buckley v. Valeo and its progeny) tilted toward a rationale of preventing corruption that outweighed the free-speech rights of contributors.

Souter’s embrace of tradition also likely explains his stubborn “over my dead body” opposition to cameras in the Supreme Court. The Burger Court, after all, had allowed cameras in lower courts in Chandler v. Florida in 1981, but did not require camera access.

“Whatever Souter’s personal political preferences,” Yarbrough wrote, “the civil liberties precedents he confronted on the Supreme Court were essentially the expansive rulings of the Warren and Burger eras.”

As the title of his book implies, Yarbrough views Souter as a traditional Republican, not a modern-day Republican who appeals to white southerners and religious fundamentalists.

When friends playfully accuse Souter of becoming a “damned liberal,” Yarbrough writes, Souter’s reply often is to quote the old joke about the New England farmer who is asked, “How’s your wife?” The farmer’s answer is, “Compared to what?” Similarly, Souter says, “If I’m a liberal, it’s compared to what?”

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