Souter Retiring; Supreme Court Choice Time for Obama

By Chuck Missler

Supreme Court Justice David Hackett Souter announced late last week that he was retiring. Less than four months into his term, and President Obama already has the serious job of nominating a justice on the US Supreme Court, one of the most powerful positions in the US Government. Who will next sit in Souter's seat? Many argue that Obama will choose a woman, and others believe she will also be a minority. The real issue, however, is not the gender of the nominee or color of the nominee's skin; the big issue will be how Obama's choice views the US Constitution.

Speculation on just who will be Obama's top choice is premature right now. Souter will retire when the Supreme Court session ends in June, and the President has a few months to vet prospective nominees. We can, however, speculate on what kind of constitutional philosophy his nominee might have and what philosophy we wish that person would have.

Justice Souter was appointed by President George H.W. Bush, and in 1990 America expected the new justice to be fairly conservative. Instead, Souter turned out to vote as a moderate pragmatist. He has tended to make practical decisions rather than decisions based on the letter of the Constitution. This judicial philosophy has made him one of the more liberal judges on the Supreme Court today. He may or may not abide by precedent. He may or may not uphold state rights. He may or may not uphold Freedom of Speech. He doesn't worry about what the framers of the Constitution originally intended.

While fellow Bush appointee Clarence Thomas has tended to line up with conservative Antonin Scalia on controversial social issues, Souter has lined up with Clinton appointees Ruth Bader Ginsburg and Stephen Breyer. In Lawrence v. Texas, Souter voted with the majority to overturn state laws against sodomy. He voted with the majority to uphold the state right to legalize assisted suicide in Oregon. In Lee v. Weisman, Souter voted with the majority to outlaw prayers at public school ceremonies, rejecting Free Speech and the "free exercise thereof" clause of the First Amendment in the name of separation of Church and State.

This is the man that Obama will be replacing. If the President appoints another moderate pragmatist, therefore, it won't change the balance of the court much. Yet, Souter was not a determined liberal. He did not have any apparent agenda when he was appointed other than to be careful how his decisions affected the lives of real people. Obama could bring in somebody far more liberal than David Hackett Souter – somebody who could sit on the Court for the next 30 years.

While it is easy to call justices "conservative" or "liberal," those terms do not mean the same in a court as they do in Congress. Supreme Court justices are not supposed to have any political agenda when they arrive at the Court. They do, however, have varying constitutional philosophies, and it is justices' philosophies about how to interpret the Constitution that tend to place them in one camp or another.

There are those who believe the Constitution is a "living" document, one that can be molded to fit the society of any particular decade. There is nothing about abortion mentioned in the Constitution, and yet seven of nine justices in 1973 decided that a "right to privacy" collected from a variety of amendments in the Bill of Rights meant that states were no longer free to outlaw abortion.

Current Justice Stephen Breyer, for instance, argues for a flexible and adaptive interpretation of the Constitution and is known for promoting "active liberty." He has been accused of making decisions as though he and other justices are a law unto themselves. Rather than recognizing the plain meaning of the Constitution as the Law, he loosely uses the Constitution to support the decisions he thinks are best.

Conservative justices currently on the court - John Roberts, Scalia, Thomas, and Alito - make decisions based on the position that the Constitution is a legal document, and that they should interpret it either according to the original purpose of the founders or according to the actual definitions of the words themselves. Constitutional Originalists argue there is no room for "finding" new rights in the Constitution that were not expressly penned there. If the Constitution can be made to say anything you want it to say, then it is no longer the Law, it's just a political or social tool. It's the job of Congress, and not of Supreme Court justices, to "make" new laws.

Justice Antonin Scalia has long criticized the living Constitution view. He has said, "The horrible consequence of that, you understand, is that it places the meaning of the Bill of Rights in the hands of the very entity against which the Bill of Rights was meant to protect you against, that being the majority."

"The Constitution is not an organism, it is a legal document," Scalia has noted.

The little that Obama has said about his plans for the new justice make it fairly clear that he does not plan to put a Constitutional Originalist on the Supreme Court. According to The New York Times, the President plans to replace Souter with somebody who recognizes "how our laws affect the daily realities of people's lives." He also wants, "someone who understands that justice isn't about some abstract legal theory or footnote in a casebook."

In other words, he wants a pragmatist like Souter, and not necessarily a legal expert. At the same time, Obama said his nominee would be someone "who is dedicated to the rule of law, who honors our constitutional traditions, who respects the integrity of the judicial process and the appropriate limits of the judicial role."

It might be difficult to marry those two sets of ideals into one person, and one who has the persuasive ability to bring other justices around to his or her point of view. Whoever Obama nominates, that person has the potential to be making vital decisions on American law for a very very long time to come.

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