One of the constant refrains in articles about David Souter’s retirement is that replacing him with another “liberal” will not change the “basic makeup of the Court.”
There are quite a few things wrong with this analysis. As the media often do, they grossly oversimplify and mischaracterize a Supreme Court justice’s philosophy. David Souter is many things, but certainly one of them is not a “progressive voice.” To be sure, he was in practice at least one of the most liberal justices, but that is, frankly, not saying much. Souter’s judicial hero, as Jeffrey Toobin describes in his wonderful book, was Warren Court-era conservative John Marshall Harlan. What the two shared was a commitment to precedent and judicial incrementalism, the idea that law ought to change slowly if it changes at all, that the Supreme Court’s purpose is not to shape society to its whims, but to decide concrete cases, provide clear rules, and largely preserve what has come before.
This is a deeply conservative tendency, made “liberal” only by the context of the times in which Souter served. The last two decades have been marked by rear-guard actions against an ascendant “conservative” bloc that wants to overturn decades of precedents in areas as diverse as federalism, church-state relations, and, of course, abortion. So Souter naturally found himself on the side of the “liberals.” Had he been on the Court forty years earlier, when Warren Court liberals were reading constitutional rights as broadly as possible, he likely would have been a “conservative voice.” His not-too-fast philosophy cannot be captured with crude descriptors like “liberal” and “conservative”; it stems from a fundamental belief about the role of judges, which Souter always believed should remain small. Keeping with his personality, Souter thought that the Supreme Court ought to be in the background of American life, keep itself out of the headlines, never alter too drastically the basic rights that Americans had come to expect.
Souter might be most remembered for his surprising 1992 vote to save Roe, but the opinion he co-wrote with Justices O’Connor and Kennedy actually reworked the Roe standard in a more “conservative” direction, and in the end, upheld four out of the five state restrictions on abortion that were under review. That was classic Souterism: preserving precedent, preserving a right that American women had come to count on, but doing so from a moderate standpoint, forced to appear “liberal” because of the unconservative designs of the Court’s “conservatives.”
You might say that, for Souter, rights were a one-way ratchet: you could always have more, but could never have less. You could object that the rights he wanted to conserve (the right to abortion most prominent among them) had to have been created at some point by judicial liberals of a very different mold. But I stand by the idea that Souter’s liberalism was a product of the times, and that, if he had been on a Court full of Marshalls and Brennans, he would have been not just a moderate liberal, but a conservative like his hero Harlan, full of compassion and practicality, but always saying “go slower” if not “don’t go there at all.”
At this moment in time, there may be no practical difference between Souter and someone more committed to legal liberalism, like Ruth Bader Ginsburg. They are both just trying to conserve liberal precedents that came before them, though the latter does so out of a firmer commitment to the precedents’ correctness, while Souter does so out of a commitment to legal stability for its own sake. But Obama is going to appoint someone who will serve for perhaps thirty years, during which time the difference between an incrementalist conservative and a true liberal voice will become more important. I personally hope that he goes with the latter, and in the meantime, enough with the crude political categories.