Balkinization: Race and the Constitution-in-Exile

Comments:

I'm not going to get down into the weeds with you about the Supreme Court's treatment of race - I thnk it is every bit as improper to use race to exclude jurors as it is to use it to admit freshman - you likely think one is ok but not the other.
But I just can't help responding to your gem:

"David Souter, no flaming liberal by any liberal standard"

If he's not a liberal, then there aren't any on the U.S. Supreme Court. He and Ginsburg vote together 85% of the time (the highest of any two justices) and he and Stevens vote together 77% of the time (still higher than Scalia and Thomas at 73%) (See SCOTUSBlog Archives for entire breakdown).

Or here is a test for any takers:
Name one constitutional issue with large social ramifications decided by the court during Souter's tenure in which he has not taken the liberal position (i.e. abortion, affirmative action, gay rights, establishment clause cases)

But I'm guessing that the same folks on the left that consider Prof's Balkin and Sunstein "moderates" believe that all of the Justices on the court are right of center.

# posted by

mjh21 : 12:14 PM

perhaps a greater glimpse into what a bush/delay/frist supreme court would look like is gleaned, not from the decision of the court yesterday, but from the decision of the fifth circuit, when miller-el was referred back to them originally by the supreme court, in a rather stinging 8-1 rebuke.

after receiving the case back from the supreme court, which presently has no bush, jr. appointees, the fifth circuit, which has a number of them, passed on the obvious racially discriminatory actions of the dallas prosecutors, forcing the supreme court to come down on them again. i have absolutely no doubt that had the president, who has already gone on the record as admiring scalia and thomas the most of any sitting or past justice, been able to pick a few justices for the supreme court prior to this decision, the ultimate result would have been to ignore, and therefore, to ultimately sanction racial discrimination in death penalty cases in texas.

beware, it could still happen.

# posted by

phg : 1:41 PM

I hope mjh21 won't think I'm getting too far down in the "weeds" to point out that Graber said Souter is "no flaming liberal"--which is a different kind of claim than that Souter is no liberal at all.

I'm no originalist (flaming or not), but even I find the actual text a pretty reliable guide to a writer's intended meaning.

Strange Doctrines.

# posted by

Michael Drake : 4:47 PM

By all means, let's get into the weeds: The justices the left admires are incapable of seeing racial discrimination in government policies which explicitly dictate differential treatment by race.

A galactic mass blackhole calling the kettle black.

# posted by

Brett : 6:24 PM

Strange,

Too cute by half. This blog isn't a constitutional text and I'm not making my opinions binding on the rest of the united states. See the diffrence?

The clear implication of the comment was that Souter isn't really a liberal. To which I say: If he votes like a liberal, with the court's other liberals...

The fact that you (or anyone else) are unwilling or unable to show even one decision in which Souter hews from the liberal social position, is telling. Either you don't know enough about Souter's votes on the court, you couldn't come up with a case if you did, or you're just a typically snarky left-winger with nothing to say that isn't vapid.

The poster said in effect that Souter wasn't really very liberal. I'll repeat - If Souter isn't a liberal: Who on the Court is?

# posted by

mjh21 : 8:09 AM

How about if it quakes like a duck, etc, and Scalia duck-hunting with the VP as a "flaming conservative" comparison to a "flaming liberal". There really is no "flaming liberal" on the Supreme Court. A recent Harvard Law Review shows the Rehnquist court tallies of the percentage of times the Chief voted in agreement with his fellow justices from 1995 through 2003. Based upon this, Justice Stevens would be the "flaming liberal" but it is difficult putting Stevens as well entrenched in the liberal camp. He happens to be independent as contrasted with the Chief, Scalia and Thomas trio of "flaming conservatives" until the recent departure of Scalia went up in smoke. After the smoke cleared, it turned out that the Constitution was not lost; even Scalia found it.

# posted by

Shag from Brookline : 8:40 AM

Ah, there you are. Liberals? What liberals? There are no liberals on the supreme court, just moderates, independents, and flaming conservatives! Just like in politics where there are only moderates and theocratic christian fundamentalists!

"it is difficult putting Stevens as well entrenched in the liberal camp"

Actually, it's not. He's a liberal. I'll repeat: Name one constitutional issue with large social ramifications decided in the last 15 years in which he has not taken the liberal position (i.e. abortion, affirmative action, gay rights, establishment clause cases, anti-death penalty ect...)

Or is there no such thing as a liberal position on any of these issues either, just a moderate position and a flaming conservative position?

# posted by

mjh21 : 11:09 AM

Dear MJH:
Souter, Stevens, and Breyer have joined majorities limiting punitive damages in tort suits. This is not, as I recall, a particularly liberal position. Ginsburg has been in dissent in most of these cases, along with Scalia and Thomas, who think that doing tort reform through the Constitution is just another version of substantive due process.

My take on Souter is that he is a old fashioned Rockefeller Republican who is more or less socially liberal, and who thinks precedent is very important. Because many of the key precedents were written in more liberal times, this increases the chances that he will vote with the more liberal Justices. But he cannot seriously be regarded as liberal in the mold of Thurgood Marshall, William Brennan, or William O. Douglas. We do not have anyone on the Supreme Court of that type today.

# posted by

JB : 10:08 AM

I would refer mjh21 to Justice Souter's votes in ADA cases: Sutton v. United Air Lines; Vaughn v. United Parcel Service; Clackamas Gastroenterology Assocs v. Wells. These are not decisions that flaming liberals much like, I think. Also, it's instructive to compare Justice Stevens's dissent in the Dale case with Justice Souter's. Whereas Justice Stevens makes it quite clear, especially in the last part of his opinion, that he is sympathetic to the substantive aims of the New Jersey law that the majority has struck down ("Unfavorable opinions about homosexuals 'have ancient roots.' Like equally atavistic opinions about certain racial groups, those roots have been nourished by sectarian doctrine."), Justice Souter's dissent explicitly distances himself from Justice Stevens ("I join Justice Stevens's dissent but add this further word on the significance of Part VI of his opinion. . . . The fact that we are cognizant of this laudable decline in stereotypical thinking on homosexuality should not, however, be taken to control the resolution of this case."). This is a difference in tone, but it's significant. Justice Blackman, let alone Justices Brennan and Marshall, would never add this kind of cautionary note. And that, I think, helps bolster the last post's argument that Souter is categorically different from past members of the liberal wing of the Court. Actually, much of what I've said applies to Justices Breyer and Ginsburg, too. Certainly they have taken the "liberal" position in certain highly publicized cases (Lawrence, Romer v. Evans, etc.), but in other cases--ones that actually may have a larger effect on the lives on Americans--these Justices are quite cautious and moderate.

# posted by

BG : 1:21 PM

BG: but in other cases--ones that actually may have a larger effect on the lives on Americans--these Justices are quite cautious and moderate.

I think you're conflating tone, or temperment, and ideology. Being "cautious" should not be seen as the same as being moderate.

# posted by

David Nieporent : 1:16 PM

Mr. Nieporent,

Even if you do not accept the thesis that tone can reflect substantive differences, that still leaves the fact that Justice Souter has not adopted the "liberal" position (which here I take to mean something like, "The position that politicians to the left of Senator Lieberman would adopt") in quite a few important, albeit less famous, cases, such as the ADA cases I mentioned, or the punitive damages case that JB mentioned, or Harmelin v. Michigan (concurring in the judgment that life in prison w/o the possibility of parole for possession of 650 g of cocaine doesn't violate the 8th Amendment). Another instructive opinion, and one that gives a good overview of his jurisprudence, is his concurrence in Washington v. Glucksberg, which is basically a paean to the second Justice Harlan.

# posted by

BG : 2:07 PM

Mr. Graber:

Did you read Thomas' dissent? All he said is that "clear and convincing" means "more likely than not." Then he showed that it is more likely not. Therefore, the majority explanation was not "clear and convincing". I don't think it was dishonest. And if you read the majority opinion, it really doesn't answer most of the questions raised by his dissent. I don't agree politically with Justice Thomas, but the dissent was, well, spot-on.

# posted by

37383938393839383938383 : 7:44 PM

Besides the point about comparing Souter to historical liberals, there also might be some value in comparing him to worldwide liberals. If one looks at democracies around the world, I would think no one on the Supreme Court would be to the slightest bit left of their average center. I could easily be wrong about this, just a guess.

# posted by

washerdreyer : 11:50 AM

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